upon its own facts, as they differ in essential particulars from most of those decided. Jurors in this territory, in the district court, are upon the panel at every term who do not understand or speak the English language, and by their side are those who do not understand or speak the Spanish. Fully threefourths of those qualified for jury duty are Mexicans, with either a limited knowledge of the English, or wholly ignorant of it. Under such circumstances, the statute provides for an interpreter, who acts under oath, and who is an officer of the court, and through him the business is conducted in both languages. While it is not, in terms, provided that such an interpreter may attend the jury in its deliberations, yet the necessity therefor is frequently imperative. The record in this cause discloses such a necessity. It recites the facts as follows: "It was afterwards shown to the court that there were both Spanish and English speaking persons on the jury, and that they were unable to communicate with each other, and that the jury requested the court to furnish them with an interpreter. The defendant objecting to this, the request was at first denied, but afterwards, the request being renewed, with the statement that an interpreter was absolutely necessary, the official court interpreter was specially sworn, and sent into the jury-room, over the exception and objection of the defendant.”

This case must stand on its peculiar facts. A jury was in deliberation without the power of communication with each other. All possibility of deliberation or agreement was thus cut off. The jury twice earnestly asked to be supplied with a medium of communication. An officer of the court, specially provided by statute to interpret evidence, was first sworn, and then sent to the jury-room. The presumption is, in the absence of the oath, that it was not to communicate to the jury, but only to act as the medium of communication, and take no part in the deliberation. He could not have been an embarrassment to the jury, for that body twice earnestly asked for his presence. The interpreter did not intrude himself upon the jury as a mere listener, but went by direction of the court, on the request of the whole panel. This case is not like one where, unbidden, a stranger goes into the jury-room as a spy upon the deliberations, or as an unwelcome intruder Such a person might be a restraint upon that free interchange of opinion so important to correct results. It is not in this case shown, or attempted to be proven. that the interpreter said a word, or performed an act, inimical or prejudicial to the prisoner, or that any juror was restrained in the exercise of his duty, or in the slightest influenced by the presence of the interpreter. Acting under oath and the order of the court, the presumption should be in favor of proper action by him, rather than against it. Under the circumstances, we are not willing to hold the presumption is that he acted improperly and to the prejudice of the defendant. If this officer of the court did or said anything prejudicial, that is a fact for the defendant to show in the court below in the first instance.

The ruling in this case on the point under consideration is predicated entirely on the facts of the case, the composition of the jury, its inability to communicate within its own body in the absence of an interpreter, its repeated request, the official position of the person sent in, and his oath. Under such a state of facts, there is no presumption that he did or sought to influence the verdict, or did anything wrong or prejudicial to defendant. We do not express any opinion as to the presumption in other irregularities, arising from the action of one not sworn, or directed specially by the court. Juries, in capital cases especially, should be carefully guarded; but we cannot hold a rule so strict and technical as to often work a mistrial when juries are so constituted that they cannot communicate. Nothing but the most urgent necessity should excuse the court in sending, even under the situation in this ter ritory, an interpreter to the jury; but such an urgent case existed in the court below.

As to the last point, we do not believe it was the legal duty of the prosecuting attorney to call the remaining witnesses. He had fully and fairly developed the facts before resting the case, and he was required to go no further. We find no error in the record. The judgment of the court below is

affirmed.

HENDERSON, J. I concur.

MOTION FOR REHEARING.

PER CURIAM. The defendant in this cause files a motion for rehearing, and urges a further alleged error on the trial below. The new contention is that the court, at a time when the jury was deliberating, made to and received communications from them in the absence of the defendant; also that the proceedings respecting the appointment of an interpreter to the jury were held in the absence of the defendant from the court-room.

The first question to determine on this contention is whether the facts shown in the record sustain the position argued. If, in fact, the defendant was in the court-room when such proceedings were taken, and such communication was not so held in his absence, then defendant's motion must be denied. It is necessary, therefore, to consider the record, which is as follows:

"Territory v. Jasper Thomason. (Murder. No. 757.)

"At the same regular term of said district court, on the eighth day of December, A. D. 1885, the same being the eighteenth day of said term, the following among other proceedings were had and entered of record: The trial of this cause proceeds, and again come the parties, the defendant being present by counsel as well as in his own proper person, the arguments of counsel are heard, and, on receiving the instructions of the court, the jury retire to consider of their verdict, in the custody of a sworn bailiff; and the jury request that they may be furnished with an interpreter, and the court, upon investigation, finding it necessary that an interpreter be furnished in order that the jury may communicate with each other, appoints E. V. Chaves as such interpreter, who is specially sworn to interpret between the members of the jury in this cause, and to keep secret their communications and investigations. Now again come the parties, the defendant being present by counsel as well as in his own proper person, and comes also the jury;" (and the record recites the return, at that point in the trial, of the verdict.)

This is the record as shown on four of the transcripts. The same proceedings are also shown in the bill of exceptions at page 38, as follows: "And thereupon the jury retired to consider their verdict. It was afterwards shown to the court that there were both Spanish and English speaking persons on the jury, and that they were unable to communicate with each other, and the jury requested the court to furnish them with an interpreter. The defendant objecting to this being done, the request was at first denied, but afterwards, the request being renewed, with the statement that an interpreter was absolutely necessary, the official interpreter was sworn,” etc.

It is evident that these recitals both refer to the same transaction, and should be construed together, as they contain all the proceedings upon the contention involved. Counsel for defendant places special emphasis on the use of the word "afterwards." That word is used simply to denote that the request for an interpreter was later in time than the retirement; but does it therefore follow that the request came from the jury while deliberating in their room separate and apart from the court, rather than in open court, in presence of the defendant? As a matter of fact, the room in which jurors deliberate is often adjoining and immediately opening into the court-room, and it frequently occurs, especially when the evidence is manifestly clear and convincing, and so the return of the jury is apparently a matter of very short

time, that the prisoner remains in the court-room under the custody of the sheriff, and it may well be concluded that such was the case in this instance. The record really affirmatively discloses that the defendant was in court in person until after all the proceedings respecting the interpreter were taken. The instruction of the jury, the request for an interpreter, the fact of his being sworn, are, by a fair reading of the record, shown, as we think, to be one continuous act in presence of the defendant in open court. The record atfirmatively shows the presence of the defendant when the instructions were given. There can be no presumption that he then retired; and that he did not, in fact, do so, but remained in person in court during all the proceedings respecting an interpreter, is apparent from the recitals in the record, especially in view of the statement therein "that the defendant objected to this being done." The motion for new trial presented for the consideration of the court below has been carefully examined. It nowhere states that the court communicated with the jury, either by message or otherwise, at a time when the jury was deliberating, separate and apart from the court. Neither does it state the interpreter was appointed and sworn by the court, and sent to the jury, either in the absence of the jury from the court-room, or in the absence of the defendant. If, in fact, the court had received a message from the jury while they were deliberating in some other place, asking for an interpreter, and the court had, in the absence of the defendant, considered such message, and determined to grant their request, and had then, in defendant's absence, selected such interpreter, and caused him to be sworn and sent to the jury, such a proceeding would, beyond all doubt, have so deeply impressed the learned counsel who so ably represents the defendant that it would have been made a ground in the motion for a new trial in the court below. The absence of such a cause in the motion confirms the view we have taken respecting the construction of the record on the point involved in this motion.

Upon a careful reconsideration, the motion for rehearing must be denied, and it is so ordered.

(4 N. M. [Gild.] 71)

JENNISON v. Boos and others.

(Supreme Court of New Mexico. January 14, 1887.)

EXCEPTIONS-SIGNING AND FILING-STRIKING FROM THE RECORD.

A bill of exceptions, not filed within the time fixed by statute or rule of court, will be stricken from the record; following Evans v. Baggs, ante, 207.

Appeal from Sierra county.

Motion to strike record and bill of exceptions from the files. Motion sustained.

Elliott, Pickett & Elliott, for plaintiff. S. B. Newcomb, for defendants. BRINKER, J. This cause was tried, and judgment rendered, on the fourteenth day of April, 1886. On the same day a motion for a new trial was filed and overruled, and the defendants given until June 15th following to propose their record and bill of exceptions for perfecting the appeal then allowed them. On June 3d the parties agreed in writing that the time for preparing such bill of exceptions be extended to August 1st. On June 9th, in accordance with said agreement, the court ordered that the time be extended, for the purpose mentioned, until the first day of August. On the fifteenth day of November defendants obtained an order for an entry nunc pro tunc, showing the filing and overruling of the motion for a new trial at the preceding April term the clerk having failed, at said term, to enter these facts of record. No further entry, stipulation, or order was made in the cause, until November 19th, when the defendants submitted to plaintiff a proposed record and bill of exceptions, which plaintiff conceded to be correct, but expressly reserved "the right to move to dismiss the cause and appeal in the supreme court, upon any and all

grounds he may elect, or for any cause whatever." December 4, 1886, the record and bill was presented to the judge, who signed it, and ordered it filed, which was done, and a transcript thereof sent to this court. Plaintiff now moves us to strike this record and bill of exceptions from the files.

This case falls within the principle announced in Evans v. Baggs, ante, 207, (decided at this term,) and for the reasons there stated the motion is sustained.

I concur: LONG, C. J.

(2 Idaho [Hasb.] 290)

COUGHANOUR v. ESTATE OF HOFFMAN, Deceased, and another, Adm'x. (Supreme Court of Idaho. February 17, 1887.)

HOMESTEAD RIGHTS OF WIDOW.

Under the homestead laws of Idaho-page 627 of Revised Laws (Edition of 1874-75,)-the widow may select a homestead after the death of her husband, under section 1 of said act, and have the same set apart by the probate court for the benefit of herself and children, under section 4 of said act. The widow is the head of a family, in contemplation of the first section of said act, and the benefits of the act are secured to her, as a wife surviving her husband, by section 4 of said act. (Syllabus by the Court.)

Appeal from Boise county, Second judicial district.

Geo. Ainslie, for appellant. C. S. Kingsley, for respondent.

BUCK, J. Appeal from a decree of the district court, confirming an order of the probate court of Boise county, setting aside 317 acres of land as a homestead, upon petition of Ella M. Hoffman, widow of Fred Hoffman, deceased, under section 4, p. 629, of the Revised Laws of Idaho. The section reads as follows: "The homestead, and other property exempt from forced sale, of either husband or wife, may be set apart by the probate court for the benefit of the surviving husband or wife, and his or her legitimate children." Section 1 of the same act (Rev. Laws, 627) provides that "the homestead, consisting of a quantity of land, together with the dwelling thereon, and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or the head of a family, shall not be subject to forced sale on execution," etc. The section further provides that said homestead shall be selected by a written declaration, and recorded as a conveyance affecting real estate, and after said recording, the husband and wife shall be deemed to hold said premises as joint tenants.

It is argued by appellant that a homestead, set aside to the widow, must be limited to 20 acres, under section 126, c. 5, of the probate act, (page 262 of our Revised Laws.) That section provides that, "if there is no law in force exempting property from execution, a homestead, consisting of a quantity not exceeding 20 acres," etc., "shall be set apart for the use of the widow and children, and shall not be subject to administration." In our territory, there is an exemption law, and therefore said section 126 of chapter 5 is not applicable to the case at bar.

It is claimed by appellant that deceased, Hoffman, having neglected to claim his homestead while living, he had no real estate exempt from execution at the time of his death, and therefore there was no homestead exempt from forced sale at the time of his death which could be set apart to his widow and children. This construction seems too literal to be in harmony with the spirit of our homestead laws. Homestead and exemption laws are construed liberally, as a protection of the unfortunate. Ror. Jud. Sales, §§ 1354, 1355; Woodward v. Murray, 18 Johns. 400; Conklin v. Foster, 57 Ill. 104; Kneettle v. Newcomb, 22 N. Y. 249. It is admitted in this case that neither the deceased, Hoffman, nor his wife had made a selection of a homestead under the statute prior to his death; but that, after his death, and prior to the order of the probate court appealed from, the widow, Ella M. Hoffman,

made the declaration, and had the same recorded as provided by law. It is claimed, however, by appellant that the widow is not a wife in contemplation of statute, nor is she the head of a family under the contemplation of the homestead law. It is admitted that the widow is the mother of three children, all of whom are living with her, and dependent upon her for support. We think that she is clearly the head of the family, and entitled to exercise her right to select a homestead at any time before the property is disposed of by forced sale or otherwise. Hawthorne v. Smith, 3 Nev. 182; Estate of David Walley, 11 Nev. 260; Ror. Jud. Sales, §§ 1358, 1359. In the case at bar she did so after the death of her husband, and during the course of administration of his estate. We think she was entitled so to do.

It is contended, however, by appellant, that, admitting that the selection of a homestead was valid, under the first section of the homestead act, yet, being a widow, she is not a wife, and section 4 does not authorize the homestead to be set off to her as the head of the family by the probate court. We think this construction inconsistent with the spirit of homestead or exemption laws. The statute reads in terms that the homestead, etc., may be set apart for the benefit of the surviving husband or wife. Perhaps the meaning would have been better expressed by transposing the words so that it would read "for the benefit of the husband or wife surviving." But it cannot be presumed that the legislators intended to limit the benefits of this section to the husband, and deprive the widow of it, when she needed it most. Indeed, the construction contended for would deprive the husband surviving the wife of the homestead, as well as the wife surviving the husband, and the section would be without force or meaning. We deem it unnecessary to discuss the principles involved in this case at length, as we are informed that, in the revision of our laws which will take effect on the first of June, 1887, important changes have been made in the sections considered in this case. Judgment is affirmed.

HAYS, C. J., and BRODERICK, J., concur.

(2 Idaho [Hasb.] 294)

GOLDSTEIN V. KRAUSE and another.

(Supreme Court of Idaho. February 21, 1887.)

1. PLEADING-ANSWER-STRIKING OUT.

An answer taking issue only on an immaterial issue of the complaint, is frivolous, and may be stricken out on that ground.

2. SAME-SHAM ANSWER.

Falsity is the test of a sham answer, and an answer shown to be sham by this test, may be stricken out.

(Syllabus by the Court.)

Appeal from First judicial district, Shoshone county.

Charles W. O'Neal, for appellants. W. W. Woods, for respondent.

HAYS, C. J. This action was brought upon a promissory note. The complaint alleges the making and delivering of the note, to one Henry Bernstine, by the defendants, who were copartners, under the firm name of Krause & Boehm, and that the same became due on the twenty-third day of August, 1884, and had not been paid; that prior to the maturity of the note, Henry Bernstine duly indorsed and delivered the note to this plaintiff, who has ever since been the owner and holder of the note. Defendants, Krause & Boehm, answering, admit the partnership; the making and delivering of the note; that the same became due and owing August 23, 1884, and that the same is not paid; but deny that, prior to August 20, 1884, Henry Bernstine indorsed and delivered the note to this plaintiff, and that the plaintiff is the owner and holder of the same. And for further answer allege that on the thir