delivered the opinion of the Court.

Defendant and appellant appeals in his own right to this Court from a judgment rendered by the Superior Court, Mayagiiez Part, in a case for subsequent petit larceny. He assigns the following errors: (1) that the trial court refused to summon one of his two witnesses, which he requested, at the time of his arraignment; (2) that he was sentenced for a subsequent petit larceny when, at the most, he was guilty of embezzlement and (3) that a witness for the prosecution incurred in some contradictions.

As to the summons of the witnesses, one of them, the only one residing in Puerto Rico (tr. 33), was summoned by order of the Court and appeared to testify for defendant. Defendant was represented by counsel during the whole proceeding, and as to the other witness, there is nothing in the transcript of evidence showing that the court was requested to summon him and that it refused to do so. It is not difficult to conclude that counsel for the defendant-appellant did not consider the testimony essential for the defense of his client.

With respect to the diversity of the offenses, the evidence for the prosecution presented a clear case of larceny *735and the evidence for the defense a possible case of embezzlement. The instructions of the judge were correct, distinguishing between the type of evidence necessary in a larceny offense and that required for embezzlement. He instructed the gentlemen of the jury that if they believed that the fiduciary relation alleged by the defendant had been proved, they should find defendant not guilty. The jury, in the exercise of its legal powers, settled the conflict in the evidence by giving credit to the evidence of prosecution. It was also within their province to settle any contradiction in the testimony.

The judgment of the Superior Court, Mayagüez Part, .is affirmed.