[Watson v. The State.] whether in or out of the State, that was a circumstance to which they might look, in determining his intention in carrying them out of the State." The defendant excepted to this entire charge, and to each part of it, and asked the court, in writing, to charge the jury, among other things, as follows: "If the jury believe, from the evidence, that the only proof of the defendant being the bailee of the prosecutor is, that the prosecutor hired the oxen to the defendant, they must acquit the defendant." The court refused to give this charge, and the defendant excepted to its refusal. GEO. W. HOOPER, for appellant. H. C. TOMPKINS, Attorney-General, for the State. BRICKELL, C. J.-The indictment is founded on the statute (Code of 1876, § 4384), declaring that "any private banker, commission-merchant, factor, broker, attorney, bailee, or other agent, who embezzles, or fraudulently converts to his own use, or fraudulently secretes, with intent to convert to his own use, any money, property or effects, deposited with him, or the proceeds of any property sold by him for another, must be punished, on conviction, as if he had stolen it." The material question presented is, whether a hirer of livestock, who, during the term of hiring, sells the same, in or out of the State, is guilty of the offense denounced by the statute. The offense is strictly statutory, and it will be seen, to constitute it, there must be the concurrence of three several facts. 1. The party accused must stand to the owner in the relation of private banker, or commission-merchant, or factor, or broker, or attorney, or bailee, or agent. 2. The money, property, or effects, must have been deposited with him, or must be the proceeds of sale, he having authority to sell. 3. The money, property, or effects, or the proceeds of sale, must have been embezzled, or fraudulently converted to the use of the accused, or must have been fraudulently secreted by him, with the intent to convert to his own use. Bailment is a term of very large signification, and is defined as "a delivery of goods in trust, upon a contract, express or implied, that the trust shall be executed, and the goods returned by the bailee, as soon as the purposes of the bailment shall be answered."-2 Kent, 559. The accuracy of this definition is questioned by Judge STORY, who defines a bailment as a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust."-Story on Bailments, § 2. There are different kinds of bailments, involving different rights and [Watson v. The State.] duties, upon the part of the bailor and bailee. When the general term, bailment, bailor, or bailee, is employed, whether in a private writing, in a verbal contract, or in a statute, its real meaning can be ascertained only by reference to the subjectmatter, and the circumstances attending its employment. The connection in which the term bailee is found in the statute under consideration, indicates very clearly that it is not used in its largest sense that it was not intended to comprehend every species of bailment, and all who might stand to the owner of money, property, or effects, in the relation of a bailee. It is limited and confined to bailees of a particular class--those having possession wholly and exclusively for the benefit of the bailor; bailments where the owner parts with the actual possession, not with the right of property, general or special, and is not without right to resume possession. The hirer of chattels for a term is a bailee, doubtless, but of a particular class or kind. The trust created is not exclusively for the benefit of the bailor, but rather for his own benefit. He acquires the exclusive right to the use and possession of the chattels during the term, and for the term is, in a large sense, the owner. If the chattel perishes, he loses the use, and yet is bound to pay the owner the recompense for the whole term. The right and title of the owner is not a present right and title, but is in reversion. It is not to a bailment of this character the statute refers, but to bailments in which the bailor and bailee stand in a fiduciary relation-in which the bailee acts for or on account of the bailor, and not for himself. Each class of persons mentioned in the statute, other than bailees, are agents, whose duty it is to act for a principal; and if possession is entrusted to them, it is merely for the purpose of effectuating the agency. With them bailees are associated; but the word is restricted, by limiting them to bailees standing in the relation of agents: bailee or other agent, are the words of the statutethe equivalent of bailee standing in the relation of agent. We do not deem it necessary to consider any other question involved, as we are of the opinion, that the appellant, being the hirer of the oxen, having the property in them, and the right of exclusive possession for the term, is not a bailee of the class to which the statute refers. In this view, the rulings of the Circuit Court are erroneous, and the judgment must be reversed, and a judgment here rendered discharging the appellant from further prosecution. [Summers v. The State.] Summers v. The State. Indictment for Carrying Concealed Weapons. 1. Waiver of trial by jury; revision of judgment on evidence.—In a prosecution for a misdemeanor, a trial by jury being waived, and the case submitted to the court for decision, the judgment on the facts, though excepted to, is not revisable; nor would this court reverse such judgment, unless under circumstances which would authorize the court below to set aside a verdict of guilty rendered on the same evidence. FROM the County Court of Jackson. Tried before the Hon. JOHN B. TALLY. The defendant in this case was indicted, in October, 1880, for carrying concealed weapons; and the prosecution was transferred into the County Court, where the following proceedings were had, as shown by the bill of exceptions: "The defendant waived a jury, and the cause was heard and determined by the presiding judge without a jury. On the trial, the State introduced Frank Washington as a witness, who testified that, in the year 1880, before the finding of the indictment, the defendant came into his store in the town of Stevenson, in said county, and proposed to swap a pistol for a watch; that witness was standing, when defendant came in, in the front end of his store; that he refused to swap his watch for a pistol, but said he would swap pistols with defendant; that they walked to the rear of the store, where he got his pistol, handed it to the defendant, and walked back to the front part of the store; that he again returned to the rear, where the defendant was standing, having his pistol in his hand; that defendant said, 'My pistol is worth two of yours;' that he (witness), after some conversation about the trade, put his pistol away, and again walked towards the front of the store; that, when he again returned to where defendant was, he did not see defendant's pistol; that they then walked to the front of the store, and the defendant went out; that he only saw defendant's pistol while defendant held it in his hand, but don't know where he got it, nor where he put it, and did not see him get it; that he did not see it concealed, and did not see it when defendant came in, nor when he went out of the store, but he was not observing defendant at that time; that he could not state whether the defendant had the pistol concealed about his person on that occasion, or not; that he might have deposited the pistol somewhere in the store before he (witness) saw him with it, but, if he did, witness knew nothing about it; that he knew defendant's general character, [Summers v. The State.] and it was good. This was all the evidence, and on this evidence the court found the defendant guilty," and rendered a judgment against him for $50 and costs. "The defendant objected to the finding of the court or judge, and to the judgment as rendered, on the ground that the evidence was insufficient, and did not warrant or authorize the court to find the defendant guilty. The court overruled the said objection, and the defendant excepted." H. C. TOMPKINS, Attorney-General, for the State. STONE, J.-Under the act "To regulate the trial of misdemeanors in Jackson county," approved February 9th, 1881 (Pamph. Acts, 232), the judge of the County Court was authorized to hear counsel and decide the present cause without a jury, unless the defendant demanded a jury. The defendant waived his right of trial by jury, which waiver was entered of record. Connelly v. The State, 60 Ala. 89. Section 7 of the act referred to secures to the defendant, whether tried by a jury or by the court, the right to "reserve by bill of exceptions any question of law arising in any of the proceedings," in like manner as provided for in similar cases in the Circuit Court, by sections 4978 to 4992 of the Code of 1876. Under this statute, and its proper construction, no question is so presented in the present case as that we can consider it. We have nothing but the evidence, and the judgment of guilty pronounced on that evidence. Such finding on testimony is not revisable, except on principles not presented by this record.-Cawthorn v. The Staie, 63 Ala. 157; Nooe's Ex'r v. Garner's Adm'r, at present term. But there is another principle which would render it unnecessary that we should, in this case, decide the question raised above. The statute authorized the judge of the County Court to try the facts, unless the defendant demanded a jury. The witness for the prosecution testified in the presence of the court, and the court was called upon to observe his manner, and weigh his testimony. In such case, the rule is, not to reverse the finding of the primary court, unless a presiding judge would set aside a jury's verdict of guilty, rendered on similar testimony.-Nooe's Ex'r v. Garner's Adm'r, at the present term. Applying that rule to this case, we do not hesitate to affirm that no judge at nisi prius would feel authorized to set aside a verdict of guilty, rendered on the evidence found in this record. Affirmed. [Creamer v. The State.] Creamer et al. v. The State. Indictment for Grand Larceny. 1. Organization of grand jury.-The act approved February 13th, 1879, regulating the drawing of grand and petit jurors in certain counties therein named (Sess. Acts 1878-9, p. 204), by which the number of grand jurors was reduced from eighteen to fifteen, was not intended to be retroactive. Where the grand jurors were drawn under the general law (Code, § 4738), prior to the passage of said local statute, though the jury was organized subsequent to that date, it was properly organized with eighteen members. FROM the Circuit Court of Cleburne. Tried before the Hon. LEROY F. Box. The indictment in this case, charging the defendants with grand larceny, was found at the March term of said court, 1879. The grand jury at that term, by which the indictment was found, was composed of eighteen members, who were regularly drawn and summoned under the general law, prior to the 13th February, 1879, on which day an act of the General Assembly was approved, regulating the drawing of grand and petit jurors in said county, with others named therein, and reducing the number of grand jurors to fifteen.-Session Acts 1878-9, p. 204. The grand jury was organized, with eighteen members, after the passage of that law; and the defendants being tried at a subsequent term, and convicted, they moved in arrest of judgment, on the ground that the grand jury was illegally organized that it should have been composed of only fifteen instead of eighteen jurors. The court overruled the motion in arrest, and rendered iudgment on the verdict against them; and they reserved the question, by bill of exceptions, for the consideration of this court. ELLIS & AIKEN, and SMITH & SMITH, for appellants. H. C. TOMPKINS, Attorney-General, for the State. SOMERVILLE, J.-The question raised in this case is settled adversely to the appellants in the case of Marler v. The State, at the present terin.-68 Ala. 580. It was there held, that where a grand jury was drawn under the general law, and prior to the passage of the act of February 13, 1879 (Acts 1878-79, p. 204), regulating the drawing of grand juries in certain |