Opinion of the Court-Ailshie, C. J.

may be for life or any number of years, the court imposing the sentence shall fix a maximum sentence."

Under this provision of the amended statute the appellant was lawfully sentenced.

Appellant also assigns as error the overruling of his motion. for a new trial, and the overruling of his motion to strike the counter-affidavits filed by the state. The affidavits submitted by defendant upon this motion purport to make a showing of newly discovered evidence. The two principal affidavits are made by George Charles Edwards and Barney Horgan, both inmates of the county jail and convicted bootleggers. The first sets forth various conversations overheard by affiant between Billy Edwards and the negro Thomas, who were at the same time confined in the county jail, from which it is made to appear that the conviction of appellant was the result of a conspiracy between Edwards and Thomas to give perjured testimony against appellant at his trial. Horgan's affidavit alleges admissions made by the witness Edwards as to appellant's innocence.

The state filed a number of counter-affidavits, and among others, two by other inmates of the county jail, stating that they were offered $50 by the affiant Horgan, if they would make affidavits on behalf of appellant. The state also filed an affidavit by R. W. Jones, court reporter, setting forth a conversation between Thomas and Edwards long subsequent to the commission of the crime. It is difficult to see the materiality of this last affidavit as a part of the state's countershowing, and the trial court might properly have stricken it from the files, but it is not shown how its being allowed to remain there has prejudiced appellant.

The trial court, in denying the motion for new trial on the ground of newly discovered evidence, doubtless viewed with some suspicion the source of the showing made, and under the circumstances would have been justified in distrusting the credibility and disinterestedness of the affiants, George Charles Edwards and Barney Horgan. A wide discretion is vested in the trial court in determining the weight to be given to the statements contained in affidavits upon motion for a

Opinion of the Court-Ailshie, C. J.

new trial, and we do not think that discretion was abused by the trial judge in this instance.

Counsel for appellant in his argument before this court made certain statements of fact dehors the record, accompanied by the explanation of peculiar exigencies, which in his opinion made it his duty to do so, and at the same time informally presented to the court an unauthenticated report of the testimony of the witness Thomas upon the later trial of the witness Edwards for the same offense of which appellant was convicted; such testimony having been given at a date subsequent to the filing of the transcript in the case at bar in this court. We sympathize with the zeal displayed by counsel on behalf of his client, and may here properly observe that the client is in no respect going to suffer from any lack of diligence on the part of his counsel. We have, however, examined this purported testimony of Thomas at the trial of Edwards, from which it appears that Thomas avers his testimony upon the trial of appellant Grant, with regard to the noncomplicity of Edwards, to have been false and perjured, and that in giving that testimony he purposed to shield Edwards, whom he now charges to have been equally culpable with appellant in the commission of this crime. But his testimony on the later trial in no way tends to relieve the appellant Grant from the stigma of guilt. Furthermore, the jury may as well have believed the original testimony given by the witness, as that upon the second trial wherein he testified that his first story was false.

The matters thus presented might possibly afford ground for the exercise of executive clemency, but this court in determining any case submitted to it upon appeal is necessarily confined to a consideration of such facts as are made to appear from the record.

Under the well-known rule, the jury who heard the witnesses in this case and observed their demeanor on the stand were the exclusive judges of the weight to be attached to their evidence. They listened to the narrative of Thomas, who committed the crime at the instigation of appellant and confessed to them in detail the manner of its instigation and

Argument for Respondents.

perpetration. They heard the corroborating testimony of Edwards, and under the instruction of the court were the proper arbiters of the question as to whether his participation in the instigation of this felony was such as to make him an accomplice in the commission of it. They listened to the witnesses for the defense, each one of whom, including the defendant, is shown by the record to have been a convicted. violator of the law. It was for the jury to say whom among these witnesses they believed and whom they disbelieved, and we are not inclined to disturb their verdict.

The judgment of the lower court is affirmed.

Sullivan, J., concurs.

(June 23, 1914.)

W. E. CAMPBELL, Appellant, v. THE BANK & TRUST CO., a Corporation, and W. H. RALPH, Respondents.

EVIDENCE-SUFFICIENCY OF.

[141 Pac. 1102.]

1. Held, that the evidence is sufficient to support the findings.

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. E. C. Steele, Judge.

Action to have certain conveyances of real estate and certain transfers of personal property canceled and held for naught. Judgment for defendants. Affirmed.

C. T. McDonald and J. S. McDonald, for Appellant, cite no authorities on point decided.

James E. Babb, for Respondents.

If the court should find even that there is only a substantial controversy in the evidence as to whether the findings made

Opinion of the Court-Sullivan, J.

by the court below are true, it would be necessary to affirm the judgment, since an appellate court will not reverse findings of fact of the lower court where there is a substantial controversy in the evidence, even though the appellate court may believe the court below was wrong. (Dearing v. Hockersmith, 25 Ida. 140, 136 Pac. 994, syllabus No. 5, and cases cited.)

SULLIVAN, J.-This action was brought to have certain deeds to real property and transfers of personal property which were executed by the appellant to the defendant bank set aside and canceled, and the ground relied upon for such relief was duress in the execution of said deeds and the transfer of said personal property.

The issues being joined by the answer, the cause was tried by the court and findings of fact made and judgment entered in favor of the defendants.

Several errors are assigned, but the main error is the insufficiency of the evidence to support the findings.

Upon an examination of the evidence, we are satisfied that it is amply sufficient to sustain the findings and that no prejudicial errors at law were committed by the court in the trial of the case.

The judgment must therefore be affirmed, and it is so ordered, with costs of this appeal in favor of the respondents.

Ailshie, C. J., concurs.

Argument for Appellant.

(June 24, 1914.)

STATE, Appellant, v. J. C. JOHNSON, G. F. HARTLEY and JOSEPH IRVIN, Respondents.

EXTERMINATION OF PREDATORY ANIMALS-SECS. 1197 AND 1198, REV. CODES, CONSTRUED POWERS OF STATE SANITARY BOARD AND STATE VETERINARIAN UNDER-PAYMENT OF BOUNTIES NOT AUTHORIZED BY. 1. Secs. 1197 and 1198, Rev. Codes, provide for the extermination of predatory animals through the employment by the livestock sanitary board of "experienced, competent and skilful hunters and trappers" at a per diem compensation. Such method having been specified by the statute, the board and the state veterinarian acting with it are precluded from resorting to other methods of extermination not authorized by law, such as the payment of bounties for the destruction of such aminals by persons not in the employ of the sanitary board.

2. If a statute is found by experience to be unwise or impracticable, relief must be sought through the legislature. Neither a state board in executing such statute, nor a court in construing it, has any authority to alter or amend it.

3. Held, that the trial court properly advised the jury to acquit the defendants.

APPEAL from the District Court of the Third Judicial District, in and for the County of Ada. Hon. Carl A. Davis, Judge.

Defendants were prosecuted on information for conspiracy in attempting to collect predatory animal bounty on spurious and fraudulent claims. Defendants acquitted. State appeals. Affirmed.

J. H. Peterson, Atty. Gen., T. C. Coffin, J. J. Guheen and E. G. Davis, Assts., for Appellant.

"Conflict and repugnance in statutes should always be avoided by construction, if possible. Indeed, a statute ought, upon the whole, to be so construed that, if it can be prevented,