contract; plaintiffs claim under the written one set out in the complaint. It is suggested that defendants' tender of the balance due, made six months after the time when the lease terminated, is too late. I think equity will regard the plaintiffs' action as asking for specific performance of the contract, as they allege it to be, and defendants' cross-complaint in response thereto as setting up and praying specific performance, as they understand the contract; that the defendants' tender is made in response to plaintiffs' demand, and is sufficient in time. I think this view is fully sustained by the authorities cited upon the argument, but I have not the time to classify them. For these reasons I cannot assent to the opinion of the court.

UNITED STATES v. CAMP.

Filed March 5, 1886.

1. CRIMINAL LAW-TRIAL-INSTRUCTIONS.

The charge to the jury should be brief, explicit, and comprehensive; full enough to protect the rights of the parties, and not so prolix as to confuse. It is not error to refuse to give an instruction which has once been given in substantially the same language.

2. EMBEZZLEMENT EVIDENCE OF PECUNIARY CONDITION OF ACCUSED.

Evidence of the pecuniary condition of defendant charged with embezzlement immediately prior to the time, and during the time, the offense is alleged to have been committed is competent.

3. CRIMINAL LAW-APPEAL-WHAT CONSIDERED.

Upon appeal in criminal cases the review in this court is confined to questions of law. The guilt of defendant is a matter for the jury, upon legal evidence.

Appeal from Second judicial district, county of Ada.

Silas W. Moody and George Ainslee, for appellant.

Fremont Wood, Asst. U. S. Atty., (Edgar A. Wilson, of counsel,) for the United States.

BUCK, J. The defendant was indicted, tried, and convicted at the December term, 1885, of the district court in and for Ada county, Second judicial district, for the crime of embezzlement of $12,306.36 government money, intrusted to him as assayer at the Boise City assay office, Idaho territory. The evidence establishes the following facts, which are admitted: That defendant took charge of said office on or about June 1, 1883, and was last in charge of the same April 14, 1885. On April 14, 1885, there should have been a balance of $24,119.78 in his possession of government money received by him during said time. On the last-named date defendant went east, and remained absent until about May, 1885. That during his absence the office and funds thereof were in charge of R. Heurschkel, assistant assayer under the defendant. When the defendant left for the east, and turned the funds over to said Heurschkel, neither counted the money in the presence of the other. Defendant testifies that he counted it himself, and there was in the neighborhood of $24,000.

Heurschkel testifies that he did not count it; supposed it was all right, and reported the full amount on hand for 16 days thereafter, and until he received orders from Washington to count the same; that upon the receipt of said order he counted the money with witnesses, and found the funds short in the amount charged in the indictment. It was the theory of the defense that Mr. Heurschkel having equal opportunity to embezzle the funds with the defendant, it was impossible to say that defendant took it, and he should have been. acquitted.

Upon this point the defendant asked the court to charge as follows:

"The jury are instructed that if they believe from the evidence that the circumstances and testimony point as strongly to some other person or persons as being guilty of taking the funds charged as being embezzled in the indictment number one as they do to the defendant, then the jury are instructed that they must find the defendant not guilty."

The law relied on as the foundation for this charge is quoted from 1 Bish. Crim. Proc. § 1105, to-wit: "If one of two persons is shown to be guilty, but it cannot be distinctly ascertained which one, none can be convicted." It is clear that if it cannot be distinctly ascertained who committed a crime, no one should be convicted. The effect, however, of the charge requested would be to acquit, if the evidence showed two or more were equally guilty. Two might commit a murder, and the evidence show the guilt of both, and yet, because it pointed as strongly to one as to the other, neither could be separately convicted under the charge as requested. To support this charge, appellant refers to Campbell v. People, 16 Ill. 17. The charge there asked for was: "If it is uncertain from the evidence which one out of two or more persons inflicted a stab, the prisoner must be acquitted, unless there is proof that the prisoner aided or abetted the person ascertained to have killed him." The two charges are quite different. Had the charge requested stated that when the evidence pointed as strongly to one as to the other, and it was uncertain which of the two was guilty, the element of uncertainty would have made it impossible to say that either was guilty, there could be no moral certainty by the jury. We think the charge was properly refused. In appellant's brief many principles of law are enunciated which seem sound, and supported by the authorities cited, but we are unable to see that any error therein was committed by the court. It is insisted that the court should never refuse an instruction asked by defendant in a criminal case to which there is no valid objection. This proposition involves the question as to the character of a charge to a jury. We apprehend that it should be brief, explicit, and comprehensive; full enough to protect the rights of the parties, and not so prolix as to confuse the jury. A few plain propositions embracing the law as applicable to the facts are all that are required or should be given. Kelley, Crim. Law, § 367; State v. Mix, 15 Mo. 153; State v. Floyd, Id. 349; People v. Varnum, 53

Cal. 630; People v. King, 27 Cal. 507; People v. Davis, 47 Cal. 93; People v. Dodge, 30 Cal. 448; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 395. We think the charge fairly states the law of the case, and that no essential feature of the defense was omitted. The appellant assigns as error the admission of certain papers, receipts, and documents of defendant's showing his financial circumstances, and his expenditures at the time he assumed such position as assayer, and immediately prior to and during the time of his holding said position. We think such evidence competent and relevant in a charge on embezzlement. 2 Bish. Crim. Proc. § 327; Boston & W. R. Corp. v. Dana, 1 Gray, 83.

In the printed brief the appellant states that said papers were of fered and received in bulk, and alleges the same as error. An inspection of the record shows that the objection to their admission was upon the ground of incompetency, and not to the manner of placing them in evidence. We think this objection should have been made at the trial, and cannot be considered for the first time on appeal. It is urged that the verdict is contrary to evidence. Under our criminal practice act this court cannot consider the weight of conflicting evidence. We may review errors of law in admitting evidence, and, in case of error, grant a new trial, but the question of fact, where there is any legal evidence, is for the jury. People v. Ah Hop, 1 Idaho, 698.

We find no error, and the judgment is affirmed.

HAYS, C. J., and BRODERICK, J., concurring.

(2 Idaho [Hasb.] 236)

WYATT v. WYATT.

Filed March 5, 1886.

1. HUSBAND AND WIFE-DIVORCE-ALIMONY, ORDER FOR.

The allowance of alimony to the wife, and counsel fees, pending an action of divorce, rests in the sound discretion of the trial court.1

2. SAME-APPEAL-ORDER FOR ALIMONY NOT APPEALABLE.

Under the laws of this territory no appeal lies to the supreme court from an order in an action of divorce for the payment of alimony pendente lite, and counsel fees. The parties must abide by the discretion of the court in this regard until a final judgment is rendered in the action. Appeal dismissed.1

8. HUSBAND AND WIFE-DIVORCE - ALIENATION OF PROPERTY-RESTRAINING ORDER.

In an action of divorce, a restraining order to save the property pending the litigation may be reviewed on appeal to this court. Order herein examined and affirmed.

Appeal from Second judicial district, county of Ada.

Huston & Gray, for respondent.

Brumback & Lamb, for appellant.

1 See note at end of case.

BRODERICK, J. This is an appeal from an order of the district judge, at chambers, awarding to the plaintiff alimony for support pending her divorce suit, and for counsel fees. The first question presented is whether this court has jurisdiction in this class of cases. It is conceded that the court here possesses no power in divorce suits except such as is conferred by statute. Congress has provided that writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of the territory, under such regulations as may be prescribed by law. The legislature has provided, by section 642 of the Code, that an appeal may be taken from the district courts to the supreme court from a final judgment, and then the mode of appeal is prescribed. Can it be said that an order for alimony pendente lite is a final judgment within the meaning of the statute?

It is contended by counsel for the appellant that the order is in the nature of a final judgment, and appealable as such, and, in support of this argument, cite Sharon v. Sharon, 7 Pac. Rep. 456. From a careful examination of the Sharon Case, it appears that the decision was placed upon the following grounds: (1) That an action of divorce is in the nature of a case in equity; (2) that by the constitution of California the supreme court had appellate jurisdiction “in all cases in equity." The court say: "Appellate jurisdiction in other enumerated cases was and is conferred, but the jurisdiction of this court in an action of divorce, in our opinion, depends on its being, in this state at least, a case in equity." The decision in this case being based on the terms of the constitution conferring upon the supreme court appellate jurisdiction in all cases in equity, it was further held that "wherever and whenever a superior court has jurisdiction to take any step or proceeding, or make any order in any case in equity, of that step, proceeding, or order the supreme court has appellate jurisdiction."

There is no provision, either in the organic act or statute of this territory, that corresponds to the constitutional provision of California; hence it does not seem to us that the Sharon Case is applicable to the case at bar. Our statute defining the appellate jurisdiction of this court (section 21, Code) reads: "Its appellate jurisdiction extends to a review of all cases removed to it, under such regulations as are or may be prescribed by law, from the final decisions of the district courts." It is said by Judge BoVIER that a "final judgment is one which puts an end to a suit." Certain it is that the order appealed from does not come within this definition. It is an incident to the suit. But it is said in some of the cases that such an order is in the nature of a final judgment. This is the most that has or can be said. That such an order may be said to be in the nature of a final judgment does not convince us that the legislature intended to make it appealable. And as this class of orders is not enumerated among the interlocutory judgments and orders made appealable by

other provisions of the statute, it cannot be claimed that an appeal will lie in this case unless the order is appealable as a final judgment. Whether there should be an appeal in such cases is not for us to determine; but it seems to us that an appeal would, in many instances, defeat the object and purpose of the statute allowing temporary alimony.

Where a wife has good ground for divorce, but has no property in her own right, it is doubtful if she can bind herself personally to pay her counsel. Certainly she cannot bind her husband nor the community property. Since she can neither bind her husband nor the community property, unless she had means of her own, she would be powerless to assert and maintain her right to a divorce if the court could not interfere. From the very necessity of the case, therefore, the court should, on application, award her a reasonable allowance for her support, and a sufficient sum with which to employ counsel. The amount awarded should only go to the necessities of the case, considering all the circumstances and the ability of the husband to pay. In view of the necessity which so often arises, and the obligation of the husband to support the wife, the legislature has, in our judgment, seen proper to leave the matter of temporary alimony to the sound discretion of the trial courts, and by that discretion the parties must abide, in such cases, until a final judgment is rendered. If this has not been wisely done, the law-making power must supply the defect or omission. 1 Bish. Mar. & Div. § 71; Sparhawk v. Sparhawk, 120 Mass. 390; Chase v. Ingalls, 97 Mass. 524; Ex parte Perkins, 18 Cal. 60; 2 Bish. Mar. & Div. § 352; Cook v. Cook, 56 Wis. 203; S. C. 14 N. W. Rep. 33, 443; Bacon v. Bacon, 43 Wis. 197.

Our conclusions are that the supreme court has no jurisdiction in this case, except in so far as the order restrained the defendant from disposing of his property. From the restraining order an appeal is allowed. After an examination of the complaint, and the affidavits of the plaintiff and defendant used on the hearing when the order appealed from was made, we are satisfied that there was sufficient ground for granting the restraining order to preserve the property until the rights of the parties could be settled and determined by a decree.

Appeal dismissed, except as to the restraining order, and therein affirmed.

HAYS, C. J., and BUCK, J., concurring.

NOTE.

The court may decree to a wife suing for divorce her expenses and temporary alimony, whenever she shows her inability to bear the expenses of litigation and living without such aid. The amount of temporary alimony and expenses thus allowed is in the reasonable discretion of the court, and an order will not be disturbed as excessive unless clearly unjust. Rose v. Rose, (Mich.) 19 N. W. Rep. 195.

While an action for divorce is pending, the court may, in its discretion, require the