Opinion of the Court-Prim, J. The plaintiff's reply denies that she forgave the acts of cruelty admitted by the defendant in his answer, and assigns that her reason for living with him after those acts was on account of the tender years of their children, and with the hope and desire that he would reform his conduct toward her, and cease to treat her in a cruel and inhuman manner. The court decided against the plaintiff, and gave judgment dismissing her bill, and a judgment for costs and disbursements in favor of the defendant, from which the plaintiff appeals. From the evidence and pleadings it appears that the plaintiff and defendant were married to each other in the year 1865, in the state of Illinois, where they resided for several years, and until they moved to Oregon. There are three children, two sons and one daughter, the issue of said marriage. The boys are thirteen and ten years of age, respectively, and the daughter seven. That in a short time after their marriage, the cruel treatment of defendant was commenced by slapping the plaintiff in the face with his open hand, and by threatening to boot her; and at another time, after their removal to Oregon, about the year 1873, by slapping her in the face without any apparent provocation. These parties continued to cohabit together as husband and wife until the thirteenth of April, 1879, at which time a final separation took place, since which time they have remained apart. The causes which led to the separation appear to be as follows: She was the owner of some property, consisting of horses and cattle, about seventeen head in all. The property had been purchased with money earned by her own personal labor in the manufacturing and sale of gloves, in washing clothes, in sewing, and in the making of butter for sale, etc. The place upon which they were residing was a piece of government land, the improvements upon which had been paid for with money earned also by her personal labor. That the money to pay for this land had also been furnished by her, but the defendant had managed in some way to procure it from the land office and spend it. That on the morning of the thirteenth of April, 1879, he in Opinion of the Court-Prim, J. formed the plaintiff that she must turn over all the stock to him, and allow him to have the full control of the same, or neither she nor the stock could remain on the place any longer. That if she refused to comply with his request in this respect, he would make it hot for her, and threatened to burn the house over her head. The plaintiff feeling aggrieved at the injustice of this demand of the defendant, and not being fully advised as to her rights in the premises, saddled a horse and went off to consult a neighbor in relation to the matter. Returning in the afternoon about four o'clock, she unsaddled the horse and turned it into the pasture, when the defendant, in order to make an exhibition of his authority and carry out his threat, undertook to turn the animal out of the pasture. The plaintiff went to the gate and undertook to prevent him from so doing, when the defendant shoved her away in a rude and angry manner, saying that neither she nor the animal could remain on the place. The plaintiff then went away and never returned to him again. A Mrs. Butler, who was residing at the house with them, testifies that on another occasion, in April, 1879, she was present when the defendant drew a chair upon the plaintiff in a threatening manner and was prevented from striking plaintiff by her stepping in between them and begging him not to strike her. It also appears that after the commencement of this suit the defendant went to Canyonville, where plaintiff had their daughter for the purpose of attending school, and took her away from her by force, and because the plaintiff caught him by the coat and thus endeavored to prevent him from taking the child off where she could never see her again, he knocked her down. This assault, having been made since the commencement of the suit, can not be considered as one of the grounds for the divorce. Two of the acts of cruelty specially charged in the complaint as having been committed in the years 1867 and 1875, respectively, are admitted by the defendant, but it is claimed by him that these acts were specially forgiven by the plaintiff about June, 1878. Plaintiff, however, denies that those acts were specially forgiven by her, and assigns as a reason for living with him Opinion of the Court-Prim, J. after the commission of those acts the tender years of their children and the hope that he would reform his conduct toward her and cease to beat her in such a cruel and inhuman manner. There being no special condonation proved, none existed, except such as must be implied from continued cohabitation of the parties after the commission of said acts. But while the acts were condoned by the continued cohabitation of the wife, they were revived by the subsequent commission of acts of the same nature. "Any conduct which, after reconciliation of the parties in a case of cruelty, creates reasonable apprehension of personal violence, will revive the condoned cruelty; in fact, it is cruelty itself." (2 Bish. Mar. and Div. 58; Gardner v. Gardner, 2 Gray, 434.) "To revive condoned cruelty there must be something of the same kind as would have supported a suit originally for cruelty, such as violence or threats of violence; but the acts need not be of the same stringent kind; something short will be sufficient, provided it be shown that the husband continues in the same state of mind, and is incapable of controlling himself, as when he actually committed the former acts of cruelty." (Davis v. Davis, 55 Barb. 55.) Legal cruelty is defined by Mr. Bishop to be "such conduct in one of the married parties as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehension of bodily harm as materially to interfere with the discharge of marital duty." (1 Bish. Mar. and Div, 715.) We think the charge of cruel and inhuman treatment is fully sustained by the evidence, when all the acts of cruelty are considered together, and that plaintiff is entitled to a divorce. It is, therefore, ordered that a decree be entered dissolving the bonds of matrimony existing between plaintiff and defendant; that plaintiff have the care and custody of their infant daughter, Marie Catherine Atteberry, and costs and disbursements. Decree of the court below reversed. Statement of Facts. STATE OF OREGON, RESPONDENT, v. H. C. DALE, APPELLANT. INDICTMENT-DISTINCT CRIMINAL ACTS.-Where the statute makes the com- SHERIFF CONVERTING MONEY-PROOF OF SUMS COLLECTED.-In a prose- IDEM CONVERSION OF PUBLIC MONEY IS LARCENY.-Money collected by a sheriff for taxes is the property of the county in the hands of the sheriff, and he may be guilty of larceny by converting the same to his own use. APPEAL from Yamhill County. The defendant was sheriff and tax collector of Yamhill county from July 1, 1876, to July 1, 1878. He was indicted by the grand jury of said county at the March term of the circuit court of said county for 1879, for larceny of public money. The crime charged is described in the indictment as follows: "As such sheriff and tax collector of said Yamhill county, said H. C. Dale had received and had in his possession in said Yamhill county on the seventh day of August, A. D. 1878, the sum of three thousand dollars in gold and silver coin of the United States of America, belonging to and being the property of said county of Yamhill, which said money he had received and collected between the fifteenth day of September, A. D. 1877, and the seventh day of August, A. D. 1878, as taxes, assessed and duly levied by the county court of said county, and that the said H. C. Dale on the said seventh day of August, A. D. 1878, in said Yamhill county, state of Oregon, then and there being, and having in his possession said sum of three thousand dollars, which belonged to, and was the personal property of said Statement of Facts. Yamhill county, Oregon, and which he had collected and received as taxes as aforesaid, did then and there fraudulently and feloniously, take, steal, make away with, embez zle and convert to his, H. C. Dale's, own use, the said three thousand dollars, and then and there neglected and refused to pay over, and does still neglect and refuse to pay over to said county of Yamhill, said three thousand dollars, or any part thereof, as by law directed and required; said county of Yamhill being all of said time a public corporation in the said state of Oregon, and the grand jury being unable to give or ascertain a more definite description of said money than that above given. Contrary to the statute," etc. Upon the trial the jury returned the following verdict: "We, the jury in the above-entitled action, find the defendant guilty as charged in the indictment, and find that the amount of money converted was the sum of twenty-five hundred dollars.' The defendant was fined five thousand dollars and sentenced to five years' imprisonment. The indictment is based upon section 559, page 414, of the criminal code, which is as follows: "If any person shall receive any money whatever for this state, or for any county, town, or other municipal corporation therein, or shall have in his possession any money whatever belonging to such state, county, town, or other corporation, or in which such state, county, town, or corporation has an interest, and shall in any way convert to his own use any portion thereof, or shall loan, with or without interest, any portion thereof, or shall neglect or refuse to pay over any portion thereof, as by law directed and required, or when lawfully demanded so to do, such person shall be deemed guilty of larceny," etc. The appellant claims that this section does not include the acts of the tax collector, and that the appellant was liable only under section 65, p. 763, of the General Laws, which is in the following words: "The sheriff shall pay over all moneys collected by him, on any tax list in his hands, to the treasurer of the county at least once a month, taking a duplicate receipt for the same, which he shall file with the |