The opinion of the court was delivered by
Mr. Justice Pore.
The appellant was convicted of the crime of breach of trust with fraudulent intent, in the Court of General Sessions for Barnwell County, in this State, at the November term, 1892, of such court, and after having been duly sentenced, appealed to this court, on nineteen grounds. These grounds may be thus classified: First. Errors in the charge of the Circuit Judge to the jury. Second. Errors in the refusal of the Circuit Judge to charge certain requests to charge, made by defendant. The first class contains the first to the twelfth exceptions, inclusive. The second class contains the thirteenth to the nineteenth exceptions, inclusive.
*3211 *320In effect, the first exception imputes error to the Circuit *321Judge in stating to the jury that the defendant saw fit, after taking advice of counsel, to stand his ground, when there was nothing in the evidence to warrant such a statement. In this conclusion the appellant is not supported, for in the testimony of the witness, C. D. Maddox, this appears: “He (Ezzard) told me he had been counselling with some lawyers, and began fixing up some defence.” This statement of the witness had been preceded by an explanation as to defendant, Ezzard, having executed a note, secured by a mortgage of laud, for the $1,700 in question between Ezzard and the Hill heirs. The exception is overruled.
2 Appellant next assails the charge of the j udge when he stated that one might be guilty of breach of trust by counselling and advising another. By reference to the charge of the judge, it will be seen that he indulged in some general observations tending to the information’of the jury of the different advances in the law looking to the repression of violation of trusts. The expression complained of by the appellant is one of such expressions as is made manifest by reproducing this part of the judge’s charge: “Counselling and advising another is breach of trust. Obtaining goods under false pretences is, and so, likewise, he who sells property under a lien without the permission of the holder of the lien, and who withholds property under levy. The statutes have multiplied so as to cover all species of dishonesty in dealing with our fellow-men.” While, in some instances, these expressions are not full enough to answer as definitions, still they have no direct bearing upon the offence with which the defendant is charged. They were not so intended by the judge. It will be observed that when the Circuit Judge undertakes to define the offence of breach of trust with fraudulent intention, he is much more careful and explicit. This exception, therefore, is not well taken.
3 The next point raised in this group of exceptions is that set up in appellant’s third exception, embracing three-quarters of a printed page of the judge's charge, wherein is set forth a narrative of the matters testified to by the witnesses which were uneontradieted in this case. The appellant *322suggests, in this connection, that by this course on the part of the judge, the question of the employing of any one by the Hill heirs to sell their lands situated in the State of Georgia was practically settled by him in the absence of any testimony to support such employment. The testimony clearly shows that, in the absence of any express authority, such as a power of attornej'- from the Hill heirs, or a written direction signed by them, the defendant, Ezzard, as the agent of the Hill heirs, did not only attempt to sell their lands by making a bargain therefor, subject, of course, to their ratification of such bargain, but that, by his fraudulent representations, the Hill heirs did actually sign a deed of conveyance carrying into effect this bargain so made by Ezzard, as théir agent, with a Mr. Pope, of Albany, in the State of Georgia. There was no denial of these facts. Under such circumstances, we can see no error on the part of the judge in this particular.
4 In the fourth, fifth, sixth, and ninth exceptions, it is suggested that the judge charged upon the facts in the particulars therein enumerated. Let it be remembered that in this case the defendant offered no evidence. It was all offered by the State. No contradiction was attempted. Much of it related to the admissions of the defendant to several persons before his trial, and which were not denied by him. Under such circumstances, the recital by the Circuit Judge in his charge to the jury of such uncontradicted testimony was not obnoxious to that provision of our Constitution forbidding a judge from charging upon the facts. We do not know that we can any more clearly express our meaning in relation to this matter than by quoting the language in the judgment of this court as it is set out in the case of Moore v. Columbia &c. R. R. Co., 38 S. C., 31: “What is meant by the judge charging upon the facts? It seems to us it may be said to occur when, in the progress of a trial, the Circuit Judge conveys by word his opinion of the sufficiency or insufficiency of certain testimony necessary to the determination by the jury of some fact at issue between the parties litigant. * * * This court, in construing this section of the Constitution, has held that any expression of the Circuit Judge in his charge that did not *323relate to the issues being tried by the jury, that were not pertinent to such issues, did not fall within the interdicted action on the part of the judge. State v. Sims, 16 S. C., 495; State v. Corbin, Ibid., 545. * * * But great emphasis is laid to the manner employed by the judge in stating the testimony. This court has decided that while he may not charge upon the facts, yet he may state the testimony in its logical order and as bearing upon certain issues. In Benedict v. Rose, 16 S. C., 630, it was said : ‘Accordingly the Constitution declares that he has the right to state the testimony and declare the law. What is the proper scope and extent of this power! It has been properly held that stating the testimony means more than repeating it. It includes the idea of stating it in its logical relations to the propositions it is to support, or contradict, as well as to the principles of law by which its bearing and force ought to be controlled, or, as it is expressed by the technical phrase, summing up.’ ” All difficulty in overruling these objections vanishes when they are carefully considered in the light of these decisions.
5 The seventh exception imputes error to the Circuit Judge for having charged that if the defendant, as the agent of the Hill heirs, received any money belonging to his priucipals, it was a breach of trust in the defendant to retain ' such money, on the ground that there was no evidence adduced at the trial to support such a proposition. We take a different view of the testimony relating to this branch of the case from that entertained by the learned counsel of the appellant. No doubt his error arises from the standpoint he occupies; for it is evident he views his client’s relation to the Hill heirs to be circumscribed by the $800 for which they were actually selling their lauds in question, while their minds were being controlled -by the false representations of the defendant. Whereas the true position is this: This agent had induced Judge Pope, of Albany, Georgia, to send an offer of $2,500 for said lands, which said sum of $2,500 .actually accompanied said offer, and was in the power and control of said defendant, as the agent of the Hill heirs, at the very moment said Hill heirs, ignorant of these last facts, accepted a part thereof *324($800) as the whole of Judge Pope’s offer, and the deed signed by the Hill heirs to Judge Pope for their lands covered in amount, as the consideration therefor, not only $2,500, but really $5,000. Thus it is apparent that the purchaser, Pope, had in the hands of Ezzard, as the agent of the heirs of Hill, the sum of $2,500 of cash, or its equivalent, which became the property of the heirs of Hill the moment they made a deed for the lands in question at or over the sum of $2,500. There was an abundance of testimony in support of all these facts to avoid the claim of the appellant that such was not the case. Let this exception be overruled. The eighth exception imputes error in the charge of the judge as to the money in the hands of Ezzard and his accomplice, as the agents of the heirs of Hill. The statement we have made in the consideration of the seventh exception, taken in connection with the other evidence in this case, justified the Circuit Judge in charging this legal proposition, if the jury found the facts sworn to by every witness, and denied or contradicted by no one, to be true. If the facts sworn to were true, the Circuit Judge was right; every dollar of the $2,500 was the property of the heirs of Hill, and the attorneys would have had an equity against these proceeds of sale. This exception must be overruled. The tenth exception must be overruled because of our views already expressed in treating of seventh and eighth exceptions.
6 The eleventh exception relates to the unfolding of the law by the Circuit Judge, that the accomplice of Ezzard and Ezzard himself, both being agents of the heirs of Hill, and as such holding funds that became the property of their principals, the heirs of Hill, the moment they signed the deed for the land in question to Judge Pope, of Albany, Georgia, at a consideration in said deed equal to or beyond $2,500, could not give a direction to said funds by which its legal ownership could be changed, certainly as long as it remained in the hands or control of Ezzard as the agent of the heirs of Hill. It made no possible difference that the accomplice of Ezzard, while on the stand as a witness, stated that he paid no $100 t.o Ezzard for him, Ezzard, to pay to the Hill heirs. If the-money belonged to the heirs of Hill, which fact *325was known to Ezzard, and he received it while the agent of such heirs, and converted such money to his own use, with a purpose to defraud and deprive such heirs of Hill of their money, it was a breach of trust with a fraudulent intent. This was no error.
7 The twelfth exception relates to the judge’s charge as to the law, provided the jury found a certain state of facts. We think the Circuit Judge committed no error here. In his charge, as before remarked, he had indicated to the j ury what the law included in the charge of a breach of trust with a fraudulent intent. This language here complained of does not militate against such definition.
8 6 Second. By the Case as agreed upon by both appellant and respondent, it no where appears that the Circuit Judge refused to charge any of the requests of the defendant-appellant. We are bound by the Case, and if it fails to show any matter, we cannot allow counsel in their argument to bring it to our attention for the first time. It is a dangerous practice. But we will waive this matter. The fourteenth exception relates to an alleged refusal by the Circuit Judge to charge defendant’s request. The Circuit Judge was right in not charging this request in the form it was presented. The $100 paid by the accomplice to Hill as the agent of the heirs of Hill may not have been paid to said Ezzard to be delivered to the Hills, yet if it came into the hands of Ezzard with a full knowledge that it was the property of his principals, the heirs of Hill, and he deliberately converted said sum of money to his own use with a fraudulent intent, he would still be guilty. We know the indictment-charged that Ezzard committed this breach of trust, which consisted in not delivering the sum of $100 which had been delivered to Ezzard to be delivered to the heirs of Hill. The crime to exist, even under this iudictment, did not need that the accomplice of Ezzard had any purpose or gave any direction that Ezzard would deliver this $100 so delivered to him to be by him delivered to the heirs of Hill. The duty of delivery of that money existed independent of any will or intent in the accomplice of Ezzard when he turned it over to Ezzard.
*3269 The fifteenth exception is not sustained by the charge of the judge; for he did explain that the old crime of larceny had become too narrow to catch some of these latter day bad' men, and that the legislature had in its wisdom extended the boundaries of larceny at the common law.
10 The sixteenth exception complains that the Circuit Judge did not hold that before a larceny can be committed of any property it must have come into the possession of the person from whom it is alleged to be stolen. We are very glad the Circuit Judge did not charge this proposition, without ample qualification. What will amount to the owner’s possession when he has agents employed to gather in his money or other property? Surely it will not be contended that the owner must first lay his hands on such property, and then from his hands turn it over to the agent, so that thereafter, if he steals such property, he may be found guilty of breach of trust with a fraudulent intent. Would not such agent be just as guilty if he received as the agent of the owner the personal property and committed a theft of it before it actually ever touched the principal’s hands? Or, in other words, is not the possession of the agent the possession of the principal? If the last be correct law, the Circuit Judge would have been charging an abstract or speculative question of law if he had followed appellant’s suggestion as to this request.
11 Appellant ashed the judge to charge that joint tenants, or tenants in common, have not an ownership as against each other upon which an indictment for larceny would be sustained. The judge very properly refused to charge an abstract proposition of law. No doubt the learned judge realized that it was good law. Unfortunately for appellant, there was no testimony to this effect in the case, and the law implied no such relation. Let the exception be overruled.
5 Appellant, by his eighteenth exception, imputes error to the Circuit Judge because of his failure to charge, as requested, “that if the Hills never had any legal title to the money, the $100 in question, the crime charged in the indictment could not have been committed as of their goods, and that they could not have any claim or right to the money *327until after they conveyed the land of which it is claimed to be a part of the purchase money; and since they received for the land all that they contracted to take, they never acquired such a title to the balance, of which the $100 in question formed a part, as will support the charge laid in the indictment, if the jury find from the evidence that such are the facts.” The Circuit Judge very properly refused to charge this request. The facts testified to do not support such a proposition. As before remarked, Judge Pope, of Albany, Georgia, agreed to pay, and did pay, the sum of $2,500 for this land. The deed executed by the heirs of Hill was for $5,000 as a consideration. In no case did the heirs of Hill recite in their deed $800 as their consideration therefor to Judge Pope. This $2,500 was actually received of Judge Pope by Ezzard and his accomplice, as the agents of the Hill heirs, and the $100 in question was a part of such $2,500, every dollar of which belonged to the Hill heirs.
12 The nineteenth exception alleges error in the trial judge in refusing to charge “that if the jury find from the evidence that the Hills never authorized the defendant to sell their land, then and in that event the defendant did not commit a breach of trust with a fraudulent intent in failing to account to them for any portion of the money for which the laud was sold.” This request was too narrow to fit the facts in testimony. Ezzard could get into possession of the money of the Hill heirs without any formal power of attorney. An agency can be created in other ways than that created by deed. If an agency actually exists, if such a relation as principal and agent is recognized and acted upon by both principal and agent, in the absence of any writing between the parties, the consequences are just as fixed in the .one case as in the other. And he who as agent of his principal receives the property of such principal and, if personal property, converts it to his (the agent’s) use, against the consent of the principal, and with a felonious intent, is just as guilty as if the relation of principal and agent arose under a deed.
It follows, therefore, that the exceptions must be overruled. It is the judgment of this court that the judgment of the Circuit Court be affirmed.