Argument for the State. CRIMINAL (May 23, 1900.) STATE v. WHITE. [61 Pac. 517.] LAW-EVIDENCE-DEPOSITION-INSTRUCTIONS.-It is not In a error to admit in evidence a deposition taken under the provisions (Syllabus by the court.) APPEAL from District Court, Nez Perces County. George W. Tannahill and James W. Reid, for Appellant. The court committed a serious error in admitting in evidence over defendant's objection an alleged deposition of Joseph Whitaker, the prosecuting witness. The statute never intended that a defendant should be prosecuted upon depositions of the prosecuting witness. The deposition was inadmissible for any purpose. (State v. Potter, 6 Idaho, 584, 57 Pac. 431; People v. Morine, 54 Cal. 575; People v. Bojorquez, 55 Cal. 463; Pooler v. State, 97 Wis. 627, 73 N. W. 336; State v. Lee, 13 Mont. 248, 33 Pac. 690; People v. Ah Chune, 57 Cal. 567.) There was nothing like diligence shown to have been used on the part of the state in its efforts to procure the attendance of the prosecuting witness, Joseph Whitaker. (Idaho Rev. Stats., sec. 8170; State v. Cleary, 40 Kan. 287, 19 Pac. 776; State v. Hunsacker, 16 Or. 497, 19 Pac. 605; People v. Lee Sare Bo, 72 Cal. 623, 14 Pac. 310.) Samuel H. Hays, Attorney General, for the State. Section 7588 of the Revised Statutes gives the defendant a fair opportunity, after due notice, to thoroughly and fully examine the witnesses, and this case is therefore not within the reason of the Potter case. The provision of the sixth amend Opinion of the Court-Huston, C. J. ment to the constitution of the United States requiring the defendant to be confronted with witnesses has no application to trials in state courts. (Ryan v. People, 21 Colo. 119, 40 Pac. 775.) It is true that the defendant might have been found guilty of several lesser offenses under this indictment, but it does not appear in the record that he called the court's attention to this fact, or that he asked an instruction on this point, as he might have done, and it was not the duty of the court necessarily to give such an instruction of his own motion. (People v. Biles, 2 Idaho, 114, 6 Pac. 120; People v. Ah Wee, 48 Cal. 236; People v. Haun, 44 Cal. 96.) HUSTON, C. J.-The defendant was convicted of an assault with intent to commit murder. This appeal is from the judgment of conviction, and from the order overruling defendant's motion for a new trial. Some twenty assignments of error are urged. The first is that the court erred in overruling defendant's motion for a continuance. The granting of a continuance is largely in the discretion of the trial court, and, as the record in this case does not contain the ground upon which the motion was predicated, we cannot say that there was an abuse of discretion. The second, third, fourth, and fifth assignments of error refer to the deposition of Joseph Whitaker, the party upon whom the alleged assault was committed. This deposition was taken under the provisions of section 7588, of the Revised Statutes. The defendant was present at the taking of the deposition, in person and by counsel, who cross-examined the witness on behalf of defendant at length. The deposition was taken-the examination had-before the judge of the trial court. It is contended by counsel for defendant that the admission in evidence of the deposition in this case was error, under the decision of this court in State v. Potter, 6 Idaho, 584, 57 Pac. 431. In that case we held that the admitting in evidence of the depositions taken on the preliminary examination of the person charged was not permissible, under our statutes, while section 7588, above referred to, makes provision for the taking of the testimony of a witness in a case like the one we are considering. Points decided. Neither the letter nor the reasoning in State v. Potter, 6 Idaho, 584, 57 Pac. 431, apply to this case. If the contention of counsel for defendant is to obtain, then section 7588 of the Revised Statutes is a delusion and a snare, and can only serve the purpose of enabling the guilty to escape punishment. Defendant's contention that the court erred in not charging the jury that they might find defendant guilty of any of the lesser offenses included in the charge of assault with intent to murder is settled by this court in People v. Biles, 2 Idaho, 103, 6 Pac. 120. We have examined the instructions given and refused by the court, and find no error therein prejudicial to the defendant. The judgment of the district court is affirmed. Quarles and Sullivan, JJ., concur. (May 23, 1900.) NORTHWESTERN AND PACIFIC HYPOTHEEK BANK v. RAUCH. [61 Pac. 516.] SEPARATE PROPERTY-COMMUNITY PROPERTY.-Property purchased in the name of the wife, partly with funds of her separate estate, and partly with money borrowed during the existence of the community, is the separate estate of the wife, to the extent to which funds of her separate estate is used and community property to the extent to which such borrowed money is used in its purchase. As a rule, property purchased with the money borrowed by either spouse during the existence of the community, is community property. MORTGAGE BY HUSBAND-WIFE'S FAILURE TO ACKNOWLEDGE.-The husband may encumber by mortgage, without the wife joining him, an undivided interest in lands not a homestead, nor used as a residence, which belongs to the community, although the wife may have a separate estate in said lands. (Syllabus by the court.) APPEAL from District Court, Latah County. George W. Goode and L. N. B. Anderson, for Appellants, cite no authorities upon the points decided. Opinion of the Court-Quarles, J. Forney & Moore, for Respondent. All property acquired after marriage and during the marital relations by either spouse is community property except such as is acquired by gift, bequest, devise or descent, and the rents. and profits of the separate property of the wife, when by the instrument by which any separate property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use. (Rev. Stats., secs. 2495-2497.) In the absence of evidence as to the law of another state, the presumption is that such law is the law of this state. (Marsters v. Lash, 61 Cal. 622; Mortimer v. Marder, 93 Cal. 172, 28 Pac. 814.) All property acquired by either the husband or wife or both during the matrimony by an onerous title or by joint lucrative title, is presumed to belong to the community until the contrary is established that the acquisition was made in one of the statutory ways for acquiring separate property. (Ballinger on Community Property, secs. 159-162, inclusive, and cases cited; McDonald v. Badger, 28 Cal. 394.) QUARLES, J.—This action was brought by the respondent to foreclose a mortgage upon certain real estate. Judgment was rendered in favor of the respondent, from which the appellants appealed to this court; and upon said appeal said judgment was reversed by this court, principally upon the ground that the evidence shows that Margaret Rauch, wife of the mortgagor, A. Rauch, did not acknowledge such mortgage. (See N. W. etc. Bank v. Rauch, 5 Idaho, 752, 51 Pac. 764. Upon a retrial the district court found that the mortgaged property was at the time of the execution of the mortgage community property; and on this ground the court determined that the execution of the mortgage by the wife was unnecessary, and that the mortgage, having been executed and acknowledged by the husband, A. Rauch, was valid. Judgment of foreclosure was again entered in favor of respondent, from which the said mortgagors, A. Rauch and wife, appealed. The only new feature presented by this appeal is the question of the character of the estate of the wife in the mortgaged property. The title to said property is, and was at the date of the execution of the mort Opinion of the Court-Quarles, J. gage, in the wife, Margaret Rauch. After a careful consideration of the evidence in the record, we are fully convinced that the said finding of the court that the mortgaged property is and was community property is contrary to the evidence. The evidence shows that said mortgaged property was purchased at the sum of $2,750; that a portion of the purchase price, to wit, $745.60, was paid out of the loan made by respondent, to secure which the mortgage was given, and the balance, $2,004.40, was paid out of the separate estate of the wife-money which she inherited and received from her father's estate. Hence said finding is erroneous, and constitutes reversible error. The court should have found the facts as above stated. The finding that the mortgaged property is community property is a conclusion of law, and not a statement of facts. It follows that the property was and is partly community property, and partly the separate estate of the wife, Margaret Rauch-that part purchased with the borrowed money, to wit, 7453%-2750, or about .271 plus per cent of the mortgaged property. There is no showing whatever to the effect that the mortgaged premises were at the date of the mortgage a homestead, or occupied by the mortgagors as a residence. Hence we must regard them as not being a homestead, or used as a residence. If a residence, the wife's execution and acknowledgment of the mortgage were necessary to its validity. Yet that is matter of defense, to be alleged and proven by the appellants. Under our statutes, community property, not a homestead or occupied as a residence, may be alienated or encumbered by the husband without the wife joining in the conveyance of encumbrance. If the mortgaged property was entirely community property, the mortgage would be valid. It must follow that, the said property being community property in part, the mortgage created a lien in favor of the respondent upon that portion which is community, but created no lien upon that portion thereof which is the separate estate of Mrs. Rauch. Judgment reversed, and the cause remanded for further proceedings consistent with this opinion. Costs awarded to appellants. Huston, C. J., and Sullivan, J., concur. |