[No. 6974.

Decided April 13, 1908.]

#### The State of Washington, *Respondent,*v. Fred Clem, *Appellant.*
      *1*

Indictment and Information — Lesser Degrees of Offense — Larceny. Upon a charge of larceny from the person, defendant may be convicted of petit larceny, as the same is but a lesser degree of the same offense.

Trial — Misconduct of Court — Comment on Evidence. The repetition by the court of a statement by a witness, for the purpose of further explanation from counsel, is not unlawful comment on the evidence.

Appeal — Preservation of Grounds — Objections and Exceptions. Unlawful comment on the evidence by the court, to which no objection was made or exception taken below, cannot be objected to for the first time in the appellate court.

Criminal Law — Evidence—Good Character — Relevancy. It is not error to restrict the examination of the accused as to particular matters concerning his previous occupations for the purpose of establishing good character, where accused had been allowed to state the same generally and go as far as circumstances required.

Same. Evidence offered by the accused concerning his family and of whom it consisted is properly excluded when it would only distract the attention of the jury from the issue.

*274Same — Appeal-—Review. The appellate court is not warranted in setting aside a conviction for insufficiency of the evidence where there was substantial evidence of appellant’s guilt.

Appeal from a judgment of the superior court for King county, Prater, J., entered November 21, 1906, upon conviction of the crime of petit larceny, after a trial upon an information charging the crime of larceny from the person.

Affirmed.

*James L. Crotty, William C. Keith,*and *Longfellow Fitzpatrick,*for appellant.

*Kenneth Mackintosh,*for respondent.

Reported in 94 Pac. 1079.

Fullerton, J.

The appellant was informed against for the crime of larceny from the person, the charging part of the information being as follows:

> “He, the said Fred Clem, in the county of King, state of Washington, on the 16th day of October, A. D. 1906, did then and there wilfully, unlawfully and feloniously, and without violence or putting in fear one Andrew Hughes, from the person of said Andrew Hughes, twenty-five dollars ($25) in lawful money of the United States, one pocket book of the value of fifty cents (50c), and one watch and chain of the value of five dollars ($5), all of the total value of thirty dollars and fifty cents ($30.50) in lawful-money of the United States, the property of said Andrew Hughes, take, steal and carry away.”

At the trial the jury returned a verdict against him for petit larceny, on which he was adjudged guilty by the court and sentenced to a term of *six*months- in the county jail. Prom the judgment and sentence he appeals.

It is objected that the court erred in denying the appellant’s motion in arrest of judgment, based on the ground that the crime of petit larceny is not included in the charge contained in the information, but we think this objection untenable. To feloniously take from the person of another the goods of that other and carry the same away, has always been *275a crime, punishable as either grand or petit larceny. Therefore when the legislature defined and made punishable the specific act of feloniously taking property from the person it did not create a new offense; it but recognized that there were degrees in larceny, some of which were deserving of more severe punishment than others, and sought to regulate the punishment in proportion to the offense. Larceny from the person, grand larceny, and petit larceny are for this reason but different degrees of the same crime, and are properly included in an information charging the higher offense, and being so, it is, of course, proper for the jury, on an information charging the higher offense, to find the accused guilty of any one of the lesser offenses that the facts proven will warrant.

It is further assigned that the court commented upon the testimony to the prejudice of the appellant. An examination of the record, aside from disclosing that the court merely repeated a statement made by a witness upon the stand for the purpose, apparently, of having a further explanation from counsel, shows that no objection was made or exception taken to the remark when made, and even if we found the remark error, which we do not, it could not be objected to for the first time in this court.

It is next assigned that the court erred in excluding certain evidence. The evidence rejected related to the prior occupation of the appellant. The court permitted him to state generally what his previous occupations had been, and sustained objections thereto only Avhen inquiries were made as to particular matters concerning such occupations. This evidence Avas admissible, if admissible at all, only because it tended to establish the appellant’s good character, and Ave think the court went as far in that direction as the circumstance required. Neither was it error to sustain objections to questions concerning his immediate family and of whom it consisted. These questions could but distract the attention of the jury from the real inquiry and in no Avise enlighten them as to the guilt or innocence of the appellant.

*276It is finally contended that the evidence is insufficient to justify the verdict. But on this question there is substantial evidence tending to show the appellant’s guilt. True, the evidence is contradicted, and a very plausible explanation is given of the incriminating circumstance that a part of the stolen property was found upon his person, but the question of guilt or innocence was for the jury and trial court, and inasmuch as they agree upon the guilt of the accused, this court has no lawful warrant to interfere.

The judgment is affirmed.

Hadley, C. J., Crow, Mount, and Root, JJ., concur.