Opinion of the Court-Budge, J.

water right shall be established as of date December 17, 1900, should be modified, for the reason that said finding is not supported by the evidence. An appropriator of water after conducting the same to the point of intended use has a reasonable time in which to apply said water to such intended use. Rutz had a reasonable time prior to the trial of this cause, in which to apply the waters appropriated by him to a beneficial use. To anticipate what he might do in the future, or to permit him to make a further application of the water to a beneficial use and make proof thereof, we think, under all of the circumstances in this case, would not be warranted, and the trial judge is instructed to modify the decree in this respect.

Hall, in his deposition, testifies that in 1895 he had five acres under cultivation. In 1907, he sold his homestead, consisting of 160 acres, to Kern and Imlay. In October, 1908, Kern transferred his one-half to Imlay, who, on April 21, 1910, sold to Ledbetter and wife. Ledbetter and wife transferred eighty acres, in May, 1910, to respondent King.

From an examination of the testimony covering a period of nineteen years, not to exceed sixty acres of the Hall entry were made susceptible of irrigation.

The court decreed to King one and one-fifth cubic feet of water per second of time. We think this amount was excessive and is not supported by the testimony. The decree will, therefore, be modified, and in lieu of one and one-fifth cubic feet, the court will decree to respondent King nine-tenths of a cubic foot of water per second of time, as of date June 12, 1897.

Appellant assigns as error the failure of the court to ascertain the entire amount of water that flows in Lewellyn creek during the irrigation season, and the failure of the court to decree to all of the parties to the action their right to the use of the waters of said stream. We think that the decree is sufficient, with the modifications ordered, so far as the rights of the respondents are concerned, but upon the authority announced in the case of Lee v. Hanford, 21 Ida. 329, 121 Pac.

Opinion of the Court-Sullivan, C. J., on Petition for Rehearing.

558, it was the duty of the court not only to fix the date of the appropriation of the respondents and the amount of water that each is entitled to, but also to decree to the appellant whatever right to the use of the waters of said Lewellyn creek it may have been entitled to, and fix the date of the appropriation. The trial court is, therefore, directed to make such additional findings and amendments to its decree as are herein specified. If the court is of the opinion that additional testimony should be introduced on behalf of either of the parties to this action, to aid in determining the exact quantity of water which should be adjudged to the appellant, such additional testimony may be introduced upon this particular question by either of the parties to this action, and the trial court is hereby authorized to fix a time for the taking of said testimony and to enter a final decree as herein indicated.

Each party to this action to pay its own costs.

Sullivan, C. J., and Morgan, J, concur.

ON PETITION FOR REHEARING.

(April 28, 1915.)

SULLIVAN, C. J.-A petition for rehearing has been filed in this case and after a very careful examination of it the court has concluded to remand the case to the trial court with the following additional instructions:

(1) Amend the judgment or decree so as to require the plaintiff and defendants to put in a proper measuring device for the purpose of measuring the water allotted to them at the point of diversion, as provided in the original decree;

(2) Amend finding of facts to the effect that the plaintiff's irrigation works were of sufficient capacity on August 23, 1909, to carry six cubic feet of water per second of time; and

(3) Amend the decree by awarding to plaintiff a water right of six cubic feet of water per second of time from Lewellyn creek, from August 23, 1909.

Points Decided.

These amendments are not to interfere with the prior rights of defendants as established by said decree as modified by the opinion in this case.

Because of the foregoing modifications of the opinion of this court, the petition for a rehearing is denied.

Budge and Morgan, JJ., concur.

(March 11, 1915.)

STATE, Respondent, v. C. J. CLARK, Appellant.
[146 Pac. 1107.]

CRIMINAL LAW-JURORS-CHALLENGE-IMPLIED BIAS-EVIDENCE- Mo
TION TO STRIKE OUT — DEFENDANT'S WITNESS ARREST OF - IN
PRESENCE OF JURY CONDUCT OF PROSECUTING ATTORNEY - PREJU

DICE- - NOT CURED BY INSTRUCTION - REJECTION OF OFFERED EVI DENCE CONTINUANCE-AFFIDAVIT FOR-ADDITIONAL INSTRUCTIONSERROR-DATE OF CRIME ELECTION BY STATE-MOTION FOR NEW TRIAL COUNTY ATTORNEY COMPEL DEFENDANT TO LEAVE THE STATE-CONTRADICTORY TESTIMONY-INSTRUCTIONS-ACCOMPLICE. 1. The court did not err in denying challenges to certain jurors on the ground of implied or actual bias.

2. Where a motion is made to strike out the entire answer of a witness where a part of such answer is responsive to the question and a part is not, it is not error for the court to deny such motion. 3. Where a witness for the defendant testifies that he was in the room of the prosecutrix on the evening or night the alleged crime was committed, and the prosecuting attorney states in open court and before the jury that the witness, according to his own testimony, had committed an offense under the laws of the state, and demands that he be remanded to the custody of the sheriff to be prosecuted for such offense, and the court thereupon orders the arrest of the witness, and he is arrested in the presence of the jury and taken from the courtroom and placed in the jail, such proceeding is prejudicial error and an invasion of the rights of the defendant, and an intimation of the opinion upon the part of the court that the witness had committed either perjury or some other felony. Such action was prejudicial to the rights of the defend

ant.

Argument for Appellant.

4. An instruction given by the court to the effect that the jury must not be influenced in any way by the action of the court in ordering the arrest of the witness in the presence of the jury and must not be influenced by the remarks of the court or counsel touching the arrest of said witness, did not, and could not, cure the error of the conduct of counsel or the action of the court in said matter.

5. Held, that the action of the assistant prosecuting attorney and the arrest of the witness in the presence of the jury was reversible error.

6. It was error for the court to reject any of the testimony given by the prosecutrix on the preliminary examination which would tend to impeach or contradict the testimony she gave on the trial of the

case.

7. Held, that the court erred in refusing to admit certain affidavits made for a continuance, where the state, in order to avoid a continuance, admitted that if the witnesses named in the affida. vits were present, they would testify as set forth in the affidavits. 8. Held, that the court erred in giving certain instructions.

9. Held, that the court erred in not granting defendant's motion for a new trial.

10. Under the provisions of sec. 7871, Rev. Codes, a conviction cannot be had upon the testimony of an accomplice unless he is corroborated by other evidence.

11. Where the testimony of the prosecutrix is contradictory or her reputation for truthfulness and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated by other witnesses, the testimony of the prosecutrix without corroboration will not warrant a conviction.

APPEAL from the District Court of the Fifth Judicial District, in and for Power County. Hon. Alfred Budge, Judge.

The defendant was charged with and convicted of the crime of incest and sentenced to a term of from five to ten years in the penitentiary. Judgment reversed and a new trial granted.

McDougall & Jones and T. S. Becker, for Appellant.

The record discloses that the jurors Meadows and Beckstead had heard the facts in this case and had formed an opinion Idaho, Vol. 27-4

Argument for Appellant.

which would require evidence to remove at the time of the examination. (Burke v. McDonald, 3 Ida. 296, 29 Pac. 98; State v. Caldwell, 21 Ida. 663, 123 Pac. 299; 24 Cyc. 302.)

The admission of a statement of prosecuting witness that when she was a child ten years ago another and distinct crime had been committed by the defendant was clearly error. (62

L. R. A. 338, note; 12 Cyc. 405; People v. Bowen, 49 Cal. 654; State v. Anthony, 6 Ida. 383, 55 Pac. 884; State v. Williams, 36 Utah, 273, 103 Pac. 250; State v. Marselle, 43 Wash. 273, 86 Pac. 586.)

The court erred in directing the sheriff to take into his custody a witness for the defendant off the witness-stand and in the presence of the jury. (Golden v. State, 75 Miss. 130, 21 So. 971; Commonwealth v. Brady, 71 Mass. (5 Gray) 58; Reed v. State, 5 Okl. Cr. 365, 114 Pac. 1114.)

"It is the duty of the trial court to refrain from allowing their acts and words to indicate to the jury their opinion of the credibility of any witness who testified in a case on trial before them, or of the merits of any such case. (State v. Hughes, 33 Kan. 23, 5 Pac. 381; People v. Abbott, 4 Cal. Unrep. 276, 34 Pac. 503; Hicks v. United States, 2 Okl. Cr. 626, 103 Pac. 873; State v. Taylor, 7 Ida. 134, 61 Pac. 288; State v. Fowler, 13 Ida. 317, 89 Pac. 757.)

The court erred in rejecting the offer of the defendant to read to the jury the answers made by the witness Abi Clark Luper before the committing magistrate at the preliminary examination, offered for the purpose of impeaching her evidence given at the trial. (State v. Trego, 25 Ida. 625, 138 Pac. 1124; State v. Corcoran, 7 Ida. 220, 61 Pac. 1034; State v. Fowler, 13 Ida. 317, 89 Pac. 757.)

Where the testimony of the prosecutrix is contradictory, or her reputation for truthfulness and veracity is impeached and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction. (State v. Trego, 21 Ida. 625, 138 Pac. 1124; State v. Tevis, 234 Mo. 276, 136 S. W. 339.)