McElheny

Appellant was indicted in six counts. Count 1 charged that appellant took and carried away for his own use, with intent to steal and purloin, certain property of the United States. 1 Each of the other counts charged that appellant had in his possession, with intent to convert to his own use and gain, certain property of the United States which had theretofore been stolen, knowing the same to have been so stolen. 2 Appellant was arraigned, pleaded not guilty, waived jury trial, was tried by the court, and was found guilty on count 1 and not guilty on the other counts. A motion for a new trial was made and denied. Thereupon, on February 18, 1944, judgment was entered sentencing appellant to be imprisoned for one year on count 1 and dismissing the other counts. From that judgment this appeal is prosecuted.

*933 Twenty-seven alleged errors were assigned 3 and are specified. 4 Assignments 1-25 are to rulings on evidence. Appellant did not except to these rulings. Hence assignments 1-25 need not be considered. 5 However, we have considered them 6 and find no merit

Assignment 26 is that “the court erred in finding [appellant] guilty of the first count of the indictment, that…

(concurring).

I concur in the result but disagree with the statement that because exceptions to the rulings of alignments 1 to 25 were not taken they “need not be considered.”' The many stations of footnote 5 stop short of this court’s decision in Sherwin v. United States, 9 Cir., 112 F.2d 503 . In that case we held that in the absence of an exception to the denial of motion for a verdict of acquittal we would not consider its merits on appeal. The Supreme Court reversed in 312 U.S. 654 , 61 S.Ct. 618 , 85 L.Ed. 1104 and ordered considered the motion to which there was no exception. Obviously we must consider the ruling to which no exception was taken.

Footnote 5’s summary stops far short of the recent case of Giles v. United States, 9 Cir, 144 F.2d 860, 861 , in which we stated, “ * * * it has been established that we will examine the record with reference to *934 an assigned claim of error to which no objection has been made or exception taken in the district court ‘far enough to see that there has been no miscarriage of justice.’ ”

In concurring, I am assuming we are not attempting to revive our reversed error in the Sherwin case or to overrule the Giles case.