Opinion of the Court-Sullivan, J.

SULLIVAN, J.-This action was brought to recover the sum of $3,769.80 alleged to be the value of certain timber sold by the plaintiff, who is respondent here, to the defendant, who is appellant here. The written contract under which the sale of said timber was made is attached to the complaint and made a part thereof, where it is agreed, among other things, that the appellant shall have three years in which to cut and remove all of the merchantable timber on said land and that the payments under the contracts were to be made thirty days after each carload of timber was shipped.

The answer put in issue many of the allegations of the complaint, and the cause was tried by the court with jury and resulted in a verdict in favor of the plaintiff for $1732.31 with interest at 7% from August 18, 1909, on which verdict a judgment was entered for that amount.

A motion for a new trial was denied and the appeal is from the order denying a new trial.

A number of errors are assigned, going to the sufficiency of the evidence to justify the verdict, excessive damages given under the influence of passion and prejudice, and the admission and rejection of certain testimony offered, and the giving and refusing to give certain instructions.

The main controversy arises over the amount of timber taken from said land by the defendant. The defendant took possession of the half section of land on which said timber stood, and, as we view the contract, it was incumbent upon him to scale the logs or measure the timber taken from said tract of land, which he failed to do.

No good purpose can be served in this opinion by analyzing the vast amount of testimony given on the trial, but we are satisfied that the verdict of the jury is fully sustained by the evidence and that the verdict was not given under the influence of passion or prejudice. We find no prejudicial error in the record made by the trial court in the admission or rejection of evidence, nor in the giving or refusing to give certain instructions. The instructions given fairly cover the law of the case as based on the evidence, and the court did

Opinion of the Court on Rehearing—Budge, J.

not err in refusing to grant a new trial because of newly discovered evidence.

The judgment is therefore affirmed and it is so ordered, with costs in favor of respondent.

Ailshie, C. J., concurs.

(December 17, 1914.)

ON REHEARING.

[144 Pac. 646.]

CONFLICT IN EVIDENCE-DISCRETION OF TRIAL COURT-CUMULATIVE EVIDENCE-ORDINARY DILIGENCE.

1.

Where there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed on appeal.

2. The granting or denying of a new trial rests in the sound discretion of the trial court.

3. Where affidavits filed in support of a motion for a new trial contain a recital of such alleged facts as are merely cumulative, or it clearly appears that the facts contained in the affidavits might have been, by the exercise of ordinary diligence, procured at the trial, the trial court will be justified upon that ground, if upon no other, in denying the motion for a new trial.

BUDGE, J.-On the 25th day of March, 1914, the above entitled cause was by counsel for the respective parties argued, submitted, and by the court taken under advisement. Thereafter, on the 11th day of May, 1914, the court announced its opinion, in which the judgment of the trial court was affirmed.

On the 3d day of June, 1914, a petition for rehearing was filed by the appellant herein, which said petition was on the 13th day of June, 1914, granted. On the 8th day of December, 1914, at the regular term of said court sitting at Coeur d'Alene, said cause was reargued and by the court taken under advisement.

Opinion of the Court on Rehearing-Budge, J.

We have carefully considered the questions submitted in this case. There are possibly two additional propositions involved that might be briefly mentioned in connection with the final determination of this cause. From a careful reading of the record it is apparent to us that there is a serious conflict in the testimony of the witnesses, particularly with reference to the amount and kind of timber that was upon the land of the plaintiff, at the time the contract upon which this action was brought was entered into between the parties to this litigation. Where there is a substantial conflict in the evidence the verdict of the jury will not be disturbed upon appeal. (Baker v. First National Bank, 25 Ida. 651, 139 Pac. 565; Tilden v. Hubbard, 25 Ida. 677, 138 Pac. 1133; Henry Gold Mining Co. v. Henry, 25 Ida. 333, 137 Pac. 523; Hufton v. Hufton, 25 Ida. 96, 136 Pac. 605.)

We have considered the affidavits filed by the appellant in support of his motion for a new trial, and we are unable to reach the conclusion that the trial court erred in denying counsel's motion for a new trial. The granting or denying of a new trial rests in the sound discretion of the trial court, and where the affidavits filed in support of the motion contain a recital of such alleged facts as are merely cumulative, or it clearly appears that the facts contained in the affidavits might have been, by the exercise of ordinary diligence, procured at or prior to the trial of the cause, the trial court would be justified, if upon no other ground, in denying the motion for a new trial.

The instructions given to the jury by the court in this case, when considered together and as a whole, fairly and correctly state the law of the case.

We therefore hold that the conclusion reached in the original opinion in this case must be affirmed, and it is so ordered, with costs of this appeal in favor of respondent.

Sullivan, C. J., and Truitt, J., concur.

Points Decided.

(December 19, 1914.)

STATE, Respondent, v. JOHN BOGRIS, Appellant.

[144 Pac. 789.]

LARCENY OF CHECKS FROM PAYEE-EVIDENCE-ADMISSIBILITY OF TO PROVE HANDWRITING-INSTRUCTIONS-BURDEN OF PROOF IN DEFENSE OF ALIBI-CONSIDERATION OF NECESSITY FOR INTERPRETER IN PRESENCE OF JURY-IMPEACHMENT OF DEFENDANT'S TESTIMONY-POSSESSION OF RECENTLY STOLEN PROPERTY.

1. Upon a prosecution for larceny of a check for a certain amount of money, no proof of actual value is required, according to the provisions of sec. 7053, Rev. Codes, as the law presumes that the face value of the check is the actual value.

2. In a prosecution for the larceny of certain checks it is not incumbent upon the state, for the purpose of establishing the value of the checks stolen, to offer proof of their due execution by the payer, or to prove the fact that they were never endorsed by the payee.

3. Held, that Exhibits "A" and "B," consisting of checks charged to have been stolen by the defendant in this case, and to have been endorsed by him with the name of the payee, were admitted in evidence in the first instance, not for the purpose of comparison of handwriting, but for the purpose of establishing the crime committed.

4. The question, whether or not a witness requires an interpreter, is a question for the court, and where counsel for defendant neglects to request the court to pass upon this question without the presence of the jury, he cannot afterward assign as error the action of the court in not excusing the jury while this matter was being considered.

5. The state cannot be deprived of the right to cross-examine a witness by the mere statement that such witness does not speak the English language; and, if it is afterward established that such witness speaks and understands the English language, he is estopped from taking any advantage of his conduct in asserting his inability to speak and understand said language.

6. Where the court instructs the jury to the effect that if any witness wilfully testified falsely as to any material fact, the jury were at liberty to disregard the entire testimony of such witness, except in case his testimony should be corroborated by other and reliable witnesses, the testimony of defendant having been impeached by the prosecution, but it appearing, so far as the record shows, that

Points Decided.

such instruction applied generally to all of the witnesses testifying in the case, the giving of such instruction was not error.

7. The following instruction, "Where the state proved such a case as would sustain a verdict of guilty, and the defendant then offers evidence, the burden of proof is on said defendant to make out his defense, and when the proof is all introduced then the primary question is, in the light of all the evidence, is the defendant guilty beyond a reasonable doubt," is not prejudicial to the defendant, by merely making it incumbent upon him to offer sufficient proof to raise a reasonable doubt in the minds of the jury as to his guilt.

8. If the defendant relies upon an alibi for the defense the burden of establishing such alibi is upon him. (State v. Webb, 6 Ida. 428, 55 Pac. 892, cited and approved.)

9. In giving the following instruction, the trial court did not trespass upon the right of the jury to pass upon all questions of fact, in accordance with the provisions of subd. 6, sec. 7855, Rev. Codes: "You are further instructed that if you believe from the evidence beyond a reasonable doubt that the property described in the information was stolen and that the defendant was found in the possession of the property after it was stolen, then such possession is, in law, a strong, incriminating circumstance, tending to show the guilt of the defendant unless the evidence and the facts and circumstances thereunder show that he may have come honestly in possession of the same.

"In this connection I further instruct you that if you find from the evidence beyond a reasonable doubt that the property described in the information was found in the possession of the defendant, then in determining whether or not the defendant is guilty you should take into consideration all of the circumstances attending such possession."

10. The possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred. (State v. Sanford, 8 Ida. 187, 67 Pac. 492, cited and approved.)

11. Held, that no error was committed by the trial court in the giving of instructions in this case or refusal to give certain instructions offered by the defendant.

APPEAL from the District Court of the First Judicial District for the County of Shoshone. Hon. W. W. Woods, Judge.

Conviction for the crime of grand larceny. Defendant appeals. Affirmed.