erty attached be claimed by a third person as his property, the sheriff may summon a jury of six men to try the validity of such claim; and such proceedings shall be had thereon, with the like effect, as in case of claim after levy upon execution." As to the validity of these provisions as a means of determining the ownership of property levied upon, or how far such proceedings will protect the sheriff, is a question not here in issue; and we do not intend to intimate any opinion upon it. Yet the statutory preliminary conditions for calling a sheriff's jury seem to have arisen by claim of Braden to the property as assignee of Bolton. But if, under any of the attachments, such conditions existed, it was optional with the sheriff to call or not to call a jury. Had they existed under White's attachment, they must have existed as well under the senior attachments, and the sheriff must have released the liens of such prior attachments, or taken indemnity under them. If he did not dismiss or take indemnity, it was his own fault. In no event, however, as the case stood, did the sheriff have right to demand indemnity from the defendant White. But if he had such right, and had done so, the statute prescribes no form for the bond, and only, if it be under the statute, that it must be "sufficient." The question of sufficiency is left entirely between the creditor and the sheriff. If there were any doubt as to the nature of the instrument in question, the brief of the appellant settles it for this case.

It says:

"We maintain that the liability of the defendants depends simply upon the terms of their contract with the plaintiff." The bond was then purely voluntary, and must be construed by its own conditions. Those conditions are, simply, that the defendants shall save the sheriff harmless from loss or liability which he may incur "by reason of attaching, seizing, levying, taking, or retention by said sheriff in his custody, under said attachment, of said property," or under the attachment in favor of White. The acts, then, for which the sheriff was indemnified, were only those done under and by virtue of White's attachment. The defendants, in terms, guarantied against nothing that was not to be for White's benefit, or acts done by the sheriff on his account. If, then, the sheriff did no act under that attachment causing loss or damage to himself, the defendants incurred no liability.

It must be noticed that there is no allegation in the complaint, nor any evidence alleged as given on the trial, that White's attachment was the reason for anything which the sheriff did. The plaintiff's bill of exceptions avers that on the trial in the district court the evidence showed that the property involved had been levied upon under prior attachments which had been served by the plaintiff as sheriff, and was sold under said prior attachments, and not under White's attachment. The allegation in the answer of White "that plaintiff, as such sheriff, under said writ of attachment, did no act to or

with any of said property, nor did the defendant White, or either of the defendants, receive any part of the proceeds of the property," seems to be fully sustained. The appellant contends that it could make no difference whether he did or did not receive benefit. We are not prepared to go so far as that. Were it shown that defendant White did receive benefit, that question might arise; but it does not arise as the case stands.

It is also to be noted that the claim of the plaintiff that he had suffered damage is controverted, and the bill of exceptions refers to no proof that he had sustained damage, or that the judgment alleged in the complaint in favor of Picotte, which is put in issue, was ever, in fact, rendered; nor was there any offer made by the plaintiff to show that fact, or to show any other fact which was not shown on the trial.

At what stage of the trial the request was made by the judge to instruct the jury to find a verdict for the defendants, does not affirmatively appear. Presumably, it was under section 4354, subd. 5, and section 4385, Rev. St. Idaho, and when the plaintiff had rested his case, and on statutory motion for nonsuit. The presumption is that the proceedings in the court below were regular till the contrary appears. It was, presumably, a "special instruction," having the effect of a judgment of nonsuit; and given on the ground that "the plaintiff had failed to prove a sufficient case for the jury." It is not apparent to the court that there was any breach of covenant on the part of the defendants. As the case stood, when the court was requested to instruct the jury the judge was fully justified in giving the instructions demanded by the defendants; and the assignment of error on that account cannot be sustained. Judgment affirmed.

BEATTY, C. J. The appellant was indicted for unlawful fishing alleged to have been done in Bear Lake county. At the close of the people's testimony the appellant moved the court to instruct the jury to render a verdict of acquittal, which motion was overruled. The appellant then introduced testimony in his behalf, and thereafter the jury found a verdict against him, upon which judgment was rendered, from which he has taken his appeal to this court.

The appellant has assigned numerous alleged errors based upon the ruling of the court on the introduction of the evidence. All such alleged errors must be considered in the light of our statute, adopted from the California Code, which is to the effect that all errors and mistakes in proceedings which do not prejudice the party in his substantial rights must be disregarded. Under this statute, which seems without ambiguity, it has frequently been held that errors which are not shown to have damaged the party complaining must be disregarded. The criticisms are largely to the admission of questions to which answers were not made, or were not against appellant, or were stricken out. There was also testimony to the effect that appellant had the reputation of being a fisherman. It is not conceded that a party can be convicted of an offense by testimony of general reputation that he has committed it; but the appellant was not charged with any offense of being a fisherman, nor is it an offense, nor does testimony of his reputation as such damage him. We do not think any of the alleged errors based upon the introduction of the testimony are shown to have damaged the appellant. That he was prejudiced in any of his substantial rights will not be presumed when not shown.

It is also claimed the testimony is not sufficient to justify a conviction. The only testimony before us is that introduced by the people, and, as it appears in the record, it is not sufficient. Had appellant rested upon that testimony, and brought it before us in the proper mode for its consideration, a reversal, probably, would be justified; but, instead, he proceeded with the introduction of testimony in his defense. That is not here. We do not know what it was. He may have convicted

himself, as has frequently happened with defendants. At any rate, the jury, upon all the evidence, found him guilty, and we cannot interfere.

At the close of the people's testimony, appellant moved the court to instruct the jury to return a verdict of not guilty, which motion the court overruled; and this is assigned as error. Our statute (section 7877) is adopted from the California Code, and provides the court may advise the jury to acquit. By another section (7855, subd. 6) it is directed the court "must not charge the jury in respect to matters of fact." Had the court given the peremptory instruction asked, it would, in violation of this provision, have taken the facts from the jury. It is held in People v. Horn, 70 Cal. 18, 11 Pac. Rep. 470, that this the court cannot do, and that it can only advise the jury. Whether, when the court is satisfied the testimony is not sufficient, it must advise the jury to acquit, regardless of the form of defendant's motion, or whether, when there is any evidence tending against the defendant, the court may, in its discretion, leave the question to the jury, we need not now consider nor decide.

After appellant's motion for the peremptory instruction was overruled, he, by introducing his testimony, waived his right to assign as error the order overruling his motion, as is held in civil cases by authority which is controlling with us. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Insurance Co. v. Crandal, 120 U. S. 530, 7 Sup. Ct. Rep. 685. Our statute (section 7864) provides: "The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code." We think, under our statute, the authorities above control in this case; and the judgment of the lower court is affirmed.

BERRY, J., concurs.

SWEET, J. I dissent from the opinion of the court. When the prosecution rested, there was not, in my judgment, sufficient evidence to warrant or sustain a conviction. The prosecution having failed to prove the guilt of the accused, the latter had a perfect right to invoke the statute. After the court refused to advise an acquittal, the defendant excepted, and offered testimony in his own behalf. It is urged in support of the judgment (1) that defendant moved for an instruction to acquit,-an instruction which the court was not authorized to give; (2) that, by introducing testimony in his own behalf, he waived his exception; and (3) that the evidence is not all here. I shall consider these points as here presented.

1. The prosecution examined several witnesses, and rested. The defendant then moved the court to instruct the jury to bring in a verdict of acquittal. It is proper to state that the exact language of the motion, which was evidently made in open court, and not reduced to writing, does not appear in the

appellate court, the evidence at that time warranted the request, the prosecution hav

2. It is urged that the defendant waived his exception to the order of the court under the rule laid down in Insurance Co. v. Crandal, 120 U. S. 530, 7 Sup. Ct. Rep. 685, and in Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493. The language of the court in the latter case (106 U. S. 701, 1 Sup. Ct. Rep. 494) is as follows: "It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of the plaintiff's testimony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony, and introduces none in his own behalf; but, if he goes on with his defense, and puts in testimony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant's testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked." If the rule laid down in this case applies to the section before referred to from our Penal Code, and to the rules of criminal practice in this territory, the discussion would be ended and the question settled, so far as this court is concerned. Subdivision 5, § 4354, Code Civil Proc., under which an action may be dismissed or a judgment for nonsuit entered, gives the conditions under which a nonsuit may be had as follows. "By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury." The decision of the supreme court before referred to would, unquestionably, control the method of procedure under this section; but let us place the section from the Penal Code by the side of section 4354 of the Code of Civil Procedure, and note how marked the contrast: "If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant." This is simply declaratory of one of the principles of the common law, namely, that the guilt of the accused must be proven. In civil cases the court "may," "upon motion," grant the order; under the Criminal Code, the court "must" make the order, without motion, if the condition specified exists. In the case at bar, if the evidence was not sufficient to sustain a conviction, when the prosecution rested, the defendant, under this statute, was authorized to call upon the court for its enforcement; and if, in the judgment of the

by legal evidence, the presumption of innocence and the peremptory statute entitled him to that instruction. Evidence that would justify the court below in sending a civil case to the jury in the exercise of its discretion would be one thing, and evidence that would warrant the conviction of a person accused of a crime would be an entirely different thing. The distinction between the two, however, is no more clearly marked than the difference in the two statutes. This construction of the statute, and the rights of the accused under it, are also in harmony with the principles of the common law, which it is intended to modify; and, under the rules of construction, we cannot pass one step be yond the point to which the statute authorizes us to go. Taking this view of the question, it matters little whether, in asking the enforcement of the statute, defendant's counsel used the word "advise" or "instruct;" for, in the absence of evidence to warrant a conviction, it was the duty of the court, under the positive mandate of the statute, to advise the acquittal, whether the defendant asked it or not. The section referred to leaves the common law in force to that extent. Under the common law, the defendant was not heard either in person or by counsel. The case was brought before the court, and the state offered its evidence. If, under that evidence, his guilt was not established, the prisoner was discharged. With the exception of the old presumption still existing in favor of the accused, nothing remains of the old principle. except this: "If the evidence does not warrant conviction, the court must advise acquittal." The mandate to obey what is left is as imperative as if the principle of the common law, and the practice under it, had never been modified at all. This is the only power left the court under which it may shield the prisoner in meritorious cases; but it is a positive right left the accused from the common-law practice, and must be exercised under the statute.

Let us consider the matter from the standpoint of another well-known principle. The ruling of the court was, in substance, a declaration to the effect that evidence had been given sufficient to warrant a conviction. If, under the legal effect of legal evidence, this was error, the rights of the accused were seriously and unlawfully injured. He was accused, arrested, and the state presented its evidence of guilt. He was in jeopardy. And, when the state rested, if the evidence was insufficient to warrant his being longer held, under the law and the statute that jeopardy was legally at an end, to the extent that the court "must," not "may," advise the jury to acquit; and it was defendant's right to invoke the statute. If the court deny the motion, the accused, if able, may rest and appeal to a higher court. If the accused is poor, he has but this alternative: to go to the