Opinion of the Court-Stockslager, J.

we find no error in the court overruling appellant's objection to the settlement of respondent's bill of exceptions.

The next alleged error is that the court does not say upon what grounds or for what reasons a new trial is granted. In passing upon the motion for a new trial the court says "that the said verdict and judgment are not sustained by the evidence, and are contrary to the law and the evidence, and that errors of law occurred at the trial of said cause." In Lowe v. Long, 5 Idaho, 122, 47 Pac. 39, to which our attention is called, this court said. "We are not advised through the record as to what was the ground upon which the motion for a new trial was granted. We must be controlled by the record presented to us, however distasteful it may be to overrule the decision of the lower court in a matter which is of necessity largely one of discretion." The facts in this case are not applicable to the one at bar. In the one under consideration the court gives reasons for granting a new trial, either of which, if well founded, is sufficient to warrant the order, while in Lowe v. Long the inference to be drawn from the opinion is that the court granted a new trial without giving any reason therefor, and none appeared in the record. Our attention is also called to Sweetser v. Mellick, 5 Idaho, 783, 51 Pac. 985. The syllabus says: "Where the record does not show the grounds upon which a new trial is granted, and no error warranting a new trial is apparent from the record, the order granting a new trial will be reversed"-and cites Lowe v. Long. It will be observed in both of these cases that this court said, where the reasons (not the facts) were not given by the trial court and did not appear in the record, the order would be reversed. The court says in the order that the new trial is granted by reason of errors of law during the trial and insufficiency of the evidence to support the judgment. If either of these reasons are apparent of record, it is sufficient to support the order of the court. We see no error in this ruling of the trial court.

The next error alleged by appellant is: "1. The payment of the twelve dollars upon the note by defendant, E. Strong, evidenced by the check, was sufficient and competent evidence of an existing and continuing debt to remove the bar of the statIdaho, Vol. 7-35

Opinion of the Court-Stockslager, J.

ute of limitations; 2. The memorandum on the check, Pierson's note,' identifies the note and debt upon which the amount of the check was to be applied; 3. The identity of the debt upon which the payment is made may be proved by parol testimony; 4. The affidavits of newly discovered evidence are wholly insufficient; 5. Defendant's enumeration of errors are not errors of law; 6. That defendant's pretended specifications of the insufficiency of the evidence are not such specifications as are intended by the statute, and cannot be considered or understood." This brings us to the all-important question in this case: Did the court err in admitting in evidence the check of E. Strong for twelve dollars, which is set out in full in the statement of the facts in this case; and was there error in the instructions given by the court relative to this check? Did the payment of the twelve-dollar check revive the obligation on said note, as contemplated by our statute; and was it the payment of Strong or Pierson? Section 4052 of our statute says: "An action upon any contract, obligation, or liability founded upon an instrument in writing must be commenced within five years." It will be seen that, if the twelve-dollar payment by the check was not Strong's payment on the note, it was barred by the statute of limitations so far as he is concerned, and his plea that the action was barred by the statute of limitations was sufficient to defeat the action as to him. There is no serious conflict in the evidence in this case. Strong admits the execution and delivery of the note at the time it is alleged in plaintiff's complaint; admits the execution and delivery of the check at the time alleged, together with all the indorsements thereon; but denies that it was his payment, or that he authorized appellant to credit the amount of the check on the note as his payment. We find in the transcript that the court asked Mr. Strong while upon the stand the following question: "Did you make this payment for yourself, or Mr. Pierson ?" He answered: "I made it for Mr. Pierson. It was just simply a debt." Defendant Pierson testified that Mr. Strong was indebted to him twelve dollars for baling hay, and he told Mr. Strong that he might take this twelve dollars and pay it to Mr. Gray. The record shows that both credits on the note are in the handwriting of Mr. Gray.

Opinion of the Court-Stockslager, J.

The credit was not made upon the note for almost three months after the check was delivered to appellant, and neither appellant nor respondent throw much light on the transaction at the time of the delivery of the check, as neither seems to remember what was said. It occurs to us that a fair deduction of the evidence is that Strong owed Pierson twelve dollars. Pierson authorized him to pay the amount to Gray. Strong did as directed, acting as the agent of Pierson, and thereby paid his debt to Pierson. If the contention of appellant is to be upheld, Strong paid a debt of twelve dollars to Pierson, and also paid twelve dollars to Gray to be credited on the note, thereby paying twenty-four dollars' debt with his twelve dollar check. The intention of the parties at the time of the transaction should govern and control the courts, and we cannot believe, from the record and evidence before us, that Mr. Strong had anything in his mind at the time of making and delivering this check save the payment to Pierson of the twelve dollars due him. The rule laid down by this court in Kelly v. Leachman, 3 Idaho, 629, 33 Pac. 44, and Law v. Spence, 5 Idaho, 244, 48 Pac. 282, does not reach this case. In view of all the facts in this case, and the well-settled rule that the action of the trial courts should never be disturbed, unless the error is plainly apparent, we think the action of the trial court in granting a new trial should be sustained; and it is so ordered, with costs to respondent.

Quarles, C. J., and Sullivan, J., concur.

PETITION FOR REHEARING.

(March 12, 1901.)

SULLIVAN, J.-This is a petition for a rehearing. On an examination of it we do not find anything presented but what was fully considered on the original hearing. We are satisfied that the conclusion reached is correct, and the petition for rehearing is denied.

Quarles, C. J., and Stockslager, J., concur.

Argument for Appellant.

(March 5, 1901.)

STATE v. SEYMOUR.

[63 Pac. 1036.]

GRAND LARCENY-JUDGMENT-REVERSAL EVIDENCE.-When, on an appeal, the judgment is reversed on the ground that the evidence is insufficient to justify the verdict, the trial court, on the motion of the county attorney, should dismiss the case when it is shown that the state has no other or further evidence than that adduced on the first trial.

SECOND TRIAL-ADDITIONAL EVIDENCE.-Held, in this case that the state did not produce, on the second trial, further or additional material evidence than that produced on the first trial.

REBUTTAL.-Under the facts of this case, it was error to refuse to

allow the defendant to introduce, in rebuttal, evidence contradicting certain statements sworn to by a witness on behalf of the prosecu tion.

JURY-INSTRUCTION TO.--When a judgment has been reversed on the ground that the evidence is insufficient to sustain the verdict, and the case is remanded, and a retrial is had, if no further or additional evidence is produced on the trial of the defendant's guilt, the court ought to instruct the jury to return a verdict of acquittal.

EXCUSING COUNTY ATTORNEY FROM TESTIFYING.-It is error to excuse the county attorney from testifying on behalf of the defendant simply because he does not wish to do so.

DISCHARGE OF DEFENDANT.-When it is made to appear that the state cannot produce additional material evidence of the guilt of one tried for a crime, and this court reverses a judgment of conviction, on the ground of the insufficiency of the evidence to support the verdict, this court will order a discharge of the prisoner.

(Syllabus by the court.)

APPEAL from District Court, Fremont County

Caleb Jones and Hawley & Puckett, for Appellant. There is absolutely no evidence to sustain the verdict, and it must be presumed to have been rendered under the influence of passion and prejudice, and should be set aside. (State v. Nesbit, 4 Idaho, 548, 43 Pac. 66; State v. Crump, 5 Idaho, 166, 47 Pac. 814; State v. Mason, 4 Idaho, 543, 43

Argument for the State.

Pac. 63.) Section 7057 of our Penal Code is in effect section 496 of the California code. The supreme court of California holds that receiving stolen property is a distinct and specific offense under that section, and that although a defendant may receive stolen property and assist in disposing of it, for the benefit of himself and the real thief, he cannot be convicted either of larceny or as an accessary after the fact, but must be tried for the offense of receiving the stolen property only. (People v. Stakem, 40 Cal. 599; People v. Fogan, 98 Cal. 230, 33 Pac. 60; People v. Maxwell, 24 Cal. 14; People v. Ribolsi, 89 Cal. 492, 26 Pac. 1082; People v. Avila, 43 Cal. 196.) Since the former decision by this court in this cause heretofore cited, this court has been called upon to pass on a similar case, and has, we urge, affirmed every contention we make herein. (State v. Marquardsen, ante, p. 352, 62 Pac. 1034.) The fourth error complained of is the refusal of the court to compel Judge Cochran, county attorney, to testify as a witness on sur-rebuttal, when called by defendant. We are entitled, if we so desire, to call upon the judge of the court himself to give evidence in this regard. Section 5956 of the Revised Statutes expressly provides that "all persons except those specified in the two succeeding sections, who are in possession of their faculties, may be witnesses."

Frank Martin, Attorney General, for the State.

The jury is the judge of the credibility of the witnesses, and the weight to be given to the evidence. A careful examination of the testimony in this case, we think, will convince the court that the jury arrived at the verdict on conflicting evidence, and on well-settled rules of this court, such verdict will not be disturbed on appeal. Below we cite a few of the many decisions of this court establishing this principle. (Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360; Bonner v. Powell, ante, p. 104, 61 Pac. 138; Sears v. Flodstrom, 5 Idaho, 314, 49 Pac. 11; Murphy v. Montandon, 4 Idaho, 320, 39 Pac. 195; United States v. Camp, 2 Idaho, 231, 10 Pac. 226; Monarch G. & S. M. Co. v. McLaughlin, 1 Idaho, 618; Mootry v. Hawley, 1 Idaho, 543; People v. Lewis, 124 Cal. 551, 57 Pac.