Opinion by

The defendant was tried under an indictment charging him with (1) larceny; (2) larceny by bailee; (3) embezzlement by broker; (4) embezzlement by agent. He was found not guilty on the first and second, but guilty on the third and fourth counts. Motions in arrest of judgment and for a new trial were filed, and after hearing were overruled and refused. Appellant’s criticism of the charge of the court is not warranted, as every phase of the case, as to the disputed facts, was fairly presented to the jury. At the conclusion of the trial when the motion for binding instructions was under consideration, the court said, “We decline to grant this motion. There are serious questions covering this indictment and the nature of the defense involved, and the court cannot in this summary manner dispose of them. We will submit the questions of fact to the jury, retaining the court’s control of the result thereof. There is no *112danger of a failure of justice in this proceeding, as there might be in the other.”

In the opinion filed in refusing a new trial, the reserved questions are so fully and accurately disposed of that it is not necessary to further review them. As to reasonable doubt, the jury was instructed, “If the evidence satisfies you of these facts beyond a reasonable doubt, it would be your duty to find him guilty of larceny. If it does not so satisfy you, your verdict should be not guilty.” The effect of this is manifest in the return by the jury of a verdict of not guilty as to larceny.

As to the third and fourth counts, the court said, “If then you find on the evidence in this case beyond a reasonable doubt that this defendant was the bailee of these goods, this money or this check, with the duty to return it again to Mr. Lonergan, and, instead of returning it, he appropriated it to his own use, then he would be guilty of that charge. If you do not find these facts, then your duty would be to find him not guilty of this charge.”

There could be no misunderstanding by the jury as to their duty in weighing the evidence to determine the guilt or innocence of the defendant, and it is not necessary for a judge to repeat a plain declaration of law where it is so clearly stated as in this charge. No request was made for more particular instructions, though the attention of counsel was directed to the subject. And, in the absence of a request for more specific instructions, the charge will not be held to be inadequate, albeit the evidence on one side might properly have been more fully referred to: Com. v. Russogulo, 263 Pa. 93; and any failure in the charge as to the presumption of innocence in the absence of a request to do so, is not reversible error where proper instructions are given on the question of reasonable doubt: Camp v. Allegheny County, 263 Pa. 276; Com. v. Wheeler, 73 Pa. Superior Ct. 164; Com. v. Berney, 262 Pa. 176. The court will not consider an appeal on any new theory or attitude toward *113the trial of the case which was not properly before the court. Under the theory on which the case was tried, “If a party does not avail himself of a legal position that was fairly before him, had he desired to use it, he cannot on appeal, raise it to the prejudice of the opposing party, who might thus be deprived of bringing forth evidence that should be necessary to meet the legal position assumed”: Morrett v. Fire Association of Phila., 265 Pa. 9. The verdict was fully warranted by the evidence, and the defendant has no just reason to complain of the manner in which the case was submitted. We find no reversible error in the trial, or any abuse of discretion in the refusal to grant a new trial.

The assignments of error are overruled, the judgment is affirmed, the record is remitted to the court below, and it is ordered that the defendant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed when the appeal on this case was made a super-sedeas.