Opinion of the Court-Sullivan, C. J.

$726, and on the day she purchased the land the husband paid her $50 on the indebtedness of between twelve and thirteen hundred dollars. At that time she borrowed from the bank $250 and applied that, together with $750 of her savings account in the bank, in the payment of $1,000 on said land. Thereafter she mortgaged said land for about $650 and paid. the balance of the purchase price therefor from the proceeds of such loan.

It does not appear from the evidence that any fraud or deception was practiced on the bank or on either of the husband's creditors whereby they were induced to give him credit by reason of the appellant's savings account in said bank or by reason of her having purchased said land. There is not a syllable of evidence that tends to show any credit was given to the bankrupt under the representations either from the wife or her husband that said land or said savings account was community property or the property of the husband, and it could not become the property of the husband without some intent on the part of the wife to transfer it to him as and for his property.

In Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 Pac. 94, it was held that the mere acquirement of the possession of the wife's separate property by the husband and his subsequent management and control of the same, all done with her consent, does not show any intent on the part of the wife to make a gift of such property to the husband or to change its status from separate to community property; that the presumption in such a case appears to be that the property continues to be the separate property of the wife and the husband takes it in trust for his wife.

If the husband borrowed money from the wife, we fail to understand why he would not have as valid a right to pay her the money borrowed as he would to pay any of his creditors, and since it does not appear from the evidence that the husband used either her money in the bank or said land as a basis of credit in his mercantile business, the bank certainly did not give the husband any credit because of the savings deposit of the wife or the land which stood in her name.

Opinion of the Court-Sullivan, C. J.

Further than that, the bank through its cashier personally made the sale of said land to the appellant, the wife, and not to the husband, and received from her the pay therefor and he knew at the time of the sale just where the thousand dollars came from which was used in making the first payment on the land. And he also knew that the balance of about $650 was raised by giving a mortgage by the wife and husband on said land, and the wife and husband are liable for the payment of said mortgage debt. Certainly if the wife pays it out of her own money, the land ought not to be taken from her and given to the creditors of the husband. If there were any indications of fraud or a conspiracy between the husband and wife to procure credit for the husband because of the property involved, then a very different question would be presented. But everything was done openly and above-board, and the cashier of the bank knew of the husband's indebtedness to the bank and also of the wife's savings account in said bank and where she procured the money to pay the purchase price for said land.

Counsel for the trustee contends that there was such a confusion of property in this case that it works a forfeiture, and that there has been no attempt to trace the separate property of appellant or its proceeds. The evidence does not show that there was any confusion of property. The evidence shows that the husband had no cattle or hogs or chickens on said ranch-that all that were ever kept there were bred from the animals purchased by the wife with the $100 given her by her father. It is true the husband in selling the property was permitted to retain the money, with the understanding that he would account for all of it after deducting the cost of the feed and grain used in feeding such animals. There is no element of confusion in this case.

We therefore hold that the land in dispute is the separate property of the appellant and that the judgment must be reversed and it is so ordered, with directions to the trial court to enter judgment in favor of the appellant in accordance with the views expressed in this opinion.

Costs awarded in favor of appellant.

Truitt, J., concurs.

Opinion of the Court-Sullivan, C. J.

(December 3, 1914.)

MYRTLE F. AVEN, Appellant, v. CALDWELL COMMERCIAL BANK, Respondent.

[144 Pac. 1108.]

Griffiths & Griffiths and Thos. D. Griffin, for Appellant.

Under any state of facts the bank would be estopped to deny that the person making a deposit is the owner of it. (Booth v. Oakland Bank of Savings, 122 Cal. 19, 54 Pac. 370; 5 Cyc. Law and Proc. 517.)

John C. Rice, for Respondent.

By sec. 2680, Rev. Codes, the rents and profits of the separate property of the husband and wife is community property, unless by the instrument by which any such property is acquired by the wife, it is provided that rents and profits thereof be applied to her sole and separate use. (Howard v. York, 20 Tex. 670; Wolford v. Melton, 26 Tex. Civ. App. 486, 63 S. W. 543; 21 Cyc. 1647.)

The earnings of the wife while living with the husband are also community property. (2 Am. & Eng. Ency. of Law, 311; Wren v. Wren, 100 Cal. 276, 38 Am. St. 287, 34 Pac. 775; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626. In re Cudworth's Estate, 133 Cal. 462, 65 Pac. 1041; Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398.)

SULLIVAN, C. J.-This case involves the right and title of the wife to certain money deposited in the defendant bank by herself, and the contention was made in this case that said savings deposit was community property and could be applied by the bank on its claim on the husband's indebtedness, on the theory that the same was community property subject to the husband's debts.

On the authority of the case of W. R. Wilkerson, Trustee in Bankruptcy, Respondent, v. Myrtle F. Aven, Appellant, just decided by this court, the judgment entered in this case

Argument for Appellant.

must be reversed and the cause remanded with instructions to enter judgment in favor of appellant.

Costs awarded to appellant.

Truitt, J., concurs.

(December 17, 1914.)

STATE, Respondent, v. WILLIAM C. JANKS, Appellant.

[144 Pac. 779.]

LARCENY INFORMATION-POSSESSION OF STOLEN PROPERTY-RECENTLY STOLEN PROPERTY-INSTRUCTIONS.

1. Where the information charges three persons with receiving stolen property, without stating whether the receiving of the same was joint or several, and one of the defendants asks for and receives a separate trial; held, that said defendant is not prejudiced by such defect in the information.

2. Any incriminating inference to be drawn from the possession of stolen property is not a presumption of law but is a deduction of fact to be considered by the jury.

3. Unless the fact is undisputed, the question whether stolen property found in the possession of a person has been "recently" stolen should be left to the jury to decide like any other material fact. It is error for the court to instruct the jury that possession of stolen property immediately after the theft is sufficient to warrant a conviction, and especially so where the evidence does not show that the defendant was in the possession of the property immediately after the theft.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Chas. O. Stockslager, Judge.

Prosecution for receiving stolen property. Verdict and judgment of conviction. Defendant William C. Janks appeals. Judgment reversed.

W. P. Guthrie and J. C. Rogers, for Appellant.

"The inference arising from the possession of stolen property is said to be one of fact, and not of law. It never rises

Argument for Respondents.

to the dignity of a conclusive presumption." (State v. Pomeroy, 30 Or. 16, 46 Pac. 797; State v. Hodge, 50 N. H. 510.)

"Even the recent, exclusive, unexplained possession of recently stolen property constitutes a mere circumstance, to be considered by the jury." (Cooper v. State, 29 Tex. App. 8, 25 Am. St. 712, 13 S. W. 1011.)

"Possession itself, without evidence tending to show guilty knowledge, could have no tendency to establish guilt." (Durant v. People, 13 Mich. 351; Commonwealth v. Phelps, 192 Mass. 591, 78 N. E. 741.)

"There is a distinction between possession as evidence of larceny and possession as evidence of unlawful receiving. In the latter offense the possession is held to be no evidence of the guilt of the person receiving them." (10 Ency. of Evidence, 671.)

"But in no case will possession sustain the conviction, on a charge of receiving stolen property." (Wharton's Criminal Law, par. 985; Wharton's Criminal Evidence, 758; People v. Chambers, 18 Cal. 383.)

The jury in this case arrived at their verdict by illogically drawing conclusions from assumed and unproven facts, and by reason of the misdirection by the court in giving the law in its instructions and by erroneous rulings upon the admission of evidence. Where error is shown injury is presumed unless the contrary appears affirmatively. (Hayne New Trial and Appeal, Rev. ed., par. 287, p. 1608.)

J. H. Peterson, Attorney General, J. J. Guheen, T. C. Coffin and E. G. Davis, Assistants, for Respondents.

A particular ground of error cannot be urged for the first time on appeal. (People v. Fitzpatrick, 80 Cal. 538, 22 Pac. 215.)

Where the information charges three persons with receiving stolen goods without stating whether the receipt was joint or several, but one receipt can be proved, and if the persons receiving were several, but one defendant can be convicted. The failure to allege whether the receipt was joint or several, however, is not a ground for demurrer. (Sec. 988, Bishop's