[10, 11] The same principle would apply to the admission of the confessions of Miller that he had taken the amalgam, a fact testified to directly by witnesses on the trial, and a fact apparently conceded, and further proof of which would not injure the defendant. Errors which do not actually prejudice or injure the defendant do not justify a reversal. State v. Williams, 28 Nev. 421, 82 Pac. 353. Following the recommendation of the American Bar Association, the late Legislatures in some of the states have passed statutes somewhat similar to section 589 of our criminal practice act (Comp. Laws, § 4554), which provides that no error or mistake in criminal proceedings shall render the same invalid, unless it had actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. This section has been in force here for half a century, having been passed by the first territorial Legislature, in 1861, and is amplified in sections 452 and 619 of our new criminal procedure, effective January 1, 1912.

It ap

the statements said to have been made by amalgam, without having an understanding Hildebrandt were only against the interests and agreement with Zimmerman. of Hildebrandt and Knight. pears that when Zimmerman said to Miller, "All right," on the 16th of January, that Miller was not entirely satisfied to go ahead upon that occasion, but requested a conference with Zimmerman the following day. This conference was had in pursuance of Sage's instructions to Zimmerman, and all subsequent acts upon the part of Miller in taking amalgam from the plates were in pursuance of the understanding which he had with Zimmerman upon the afternoon of the 17th of January. It is manifest from the testimony that it was practically impossible for Miller to remove the amalgam without the co-operation of the watchman Zimmerman, and Zimmerman so testified. The amalgam was removed from the plates in the presence of Zimmerman and with his consent, and Zimmerman's actions were in accordance with the directions of Sage, the chief detective of the company, and with the approval of the attorney of the corporation. Zimmerman not only entered into an agree ment with Miller as to the manner in which the amalgam was to be taken, but further agreed that he was to give certain signs to Miller, if necessary, that would warn him against possible detection by other employés of the company. While it is true that Zimmerman did not participate in the original design to steal amalgam from the plates of the milling company, he did co-operate with Miller in perfecting the plan by which all of the amalgam was subsequently taken by the defendant Miller.

We find no prejudicial error in the record, and the judgment of the district court is affirmed.

SWEENEY, C. J., concurs.

NORCROSS, J. (dissenting). I am unable to concur in the views of my learned Associates in this case. In my judgment, the undisputed evidence in this case establishes such a consent upon the part of the Goldfield Milling & Transportation Company to the asportation of the amalgam by the defendant Miller as to remove from the taking the essential element of trespass going to make up the crime of larceny.

It appears from the testimony upon the part of the state that the taking of the amalgam from the plates of the Goldfield Milling & Transportation Company had been going on at different times with the knowledge and acquiescence of the agents of the said company for a period of about a month prior to the arrest of the defendant Miller. It has not been contended, upon the part of the state, that Zimmerman and Sage were not acting as the agents of the said Milling & Transportation Company. They represented said company, in so far as their acts were concerned. It is also manifest from their testimony that both Zimmerman and Sage were deputy sheriffs, and that the removal of the amalgam from the plates could not have been accomplished without the co-operation of Zimmerman, unless Zimmerman himself be conceded to be an accessory before the fact. Miller testified that he never had any conversation with Hildebrandt prior to the time Zimmerman told him, "All right, go ahead." Miller further testified that he never would have attempted a theft of the

Something is attempted to be made of the point that there was some disagreement in the testimony of the state's witnesses, Miller and Zimmerman, and that the latter testified that the former was in error in saying that he said, "All right, go ahead;" that he only said, "All right." This, to my mind, is a distinction without a difference, when it was the understanding that the words "all right" were to be the signal for Miller to go ahead. Zimmerman himself testifies that on the night following the second taking of amalgam, when Miller gave him $14 as his part, that Miler said: "It wasn't hardly worth taking that small amount off. He said we might as well take more, to which I just assented." Upon another occasion (the last), prior to Miller's arrest, Zimmerman testified relative to a conversation with Miller as follows: "After he had looked at the plates and got ready to go to work, he says, 'Well, we might as well go a little stronger and wind this thing up.' I says, 'Sure.'"

True Sage testifies that he instructed Zimmerman not to consent, but there can be no question but that Zimmerman was instructed to assume the attitude of consenting. Zimmerman testified that he reported everything to Sage, and that he was acting under Sage's instructions.

There is no conflict in the authorities upon

the proposition of law that, where the taking is with the consent of the owner, there is no larcený; but the difficulty is in applying the law to the facts of the given case. It is conceded in the prevailing opinion that this is a border line case, and the only difference between my Associates and myself is as to which side of the line it falls. In cases of this kind, it is necessary to keep clearly in mind that it is the question of consent or nonconsent, and not the mala fides of the defendant, which makes the taking a larceny or not.

the consequent crime may be punished, is a dangerous practice. It is safer law and sounder morals to hold, where one arranges to have a crime committed against his property or himself, and knows that an attempt is to be made to encourage others to commit the act by one acting in concert with such owner, that no crime is thus committed. The owner and his agent may wait passively for the would-be criminal to perpetrate the offense, and each and every part of it, for himself, but they must not aid, encourage, or solicit him that they may seek to punish." Where the plan originates with the accus

actively urges or encourages the defendant on to its commission, the owner will be deemed to have consented.

In the recent case of Topolewski v. State, 130 Wis. 244, 109 N. W. 1037, 7 L. R. A. (N. S.) 756, 118 Am. St. Rep. 1019, 10 Am. & Eng. Ann. Cas. 627, which upon the facts is similar in many respects to the case at bar, the court said: "The logical basis for the doctrine above discussed is that there can be no larceny without a trespass. So if one procures his property to be taken by another intending to commit larceny, or delivers his property to such other, the latter purposing to commit such crime, the element of trespass is wanting, and the crime not fully consummated, however plain may be the guilty purpose of the one possessing himself of such property. That does not militate against a person's being free to set a trap to catch one whom he suspects of an intention to commit the crime of larceny, but the setting of such trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner of the property as to put him in the position of having consented to the taking. If I induce one to come and take my property, and then place it before him to be taken, and he takes it with criminal intent, or if, knowing that one intends to take my property, I deliver it to him, and he takes it with such intent, the essential element of trespass involving nonconsent requisite to a completed offense of larceny does not characterize the transaction, regardless of the fact that the moral turpitude involved is no less than it would be if such essential were present."

The following excerpt from the case of Williams v. State, 55 Ga. 391, has been fre-ed, and the owner, upon learning of the same, quently cited with approval in cases of this character: "It seems to be settled law that traps may be set to catch the guilty, and the business of trapping has, with the sanction of courts, been carried pretty far. Opportunity to commit crime may, by design. be rendered the most complete, and if the accused embrace it he will still be criminal. Property may be left exposed for the express purpose that a suspected thief may commit himself by stealing it. The owner is not bound to take any measures for security. He may repose upon the law alone, and the law will not inquire into his motive for trusting it. But can the owner directly, through his agent, solicit the suspected party to come forward and commit the criminal act, and then complain of it as a crime, especially where the agent, to whom he has intrusted the conduct of the transaction, puts his own hand into the corpus delicti, and assists the accused to perform one or more of the acts necessary to constitute the offense? Should not the owner and his agent, after making everything ready and easy, wait passively and let the would-be criminal perpetrate the offense for himself in each and every essential part of it? It would seem to us that this is the safer law, as well as the sounder morality, and we think it accords with the authorities. * * * It is difficult to see how a man may solicit another to commit a crime upon his property, and when the act to which he was invited has been done be heard to say that he did not consent to it. In the present case, but for the owner's incitement, through his agent, the accused may have repented of the contemplated wickedness before it had developed into act. It may have stopped at sin, without putting on the body of crime. To stimulate unlawful intentions, with the motive of bringing them to punishable maturity, is a dangerous practice. Much better is it to wait and see if they will not expire. Humanity is weak; even strong men are sometimes unprepared to cope with temptation and resist encouragement to evil."

In the case of Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139, the court said: "A contemplated crime may never be developed into a consummated act. To stimulate unlawful intentions for the purpose and with the motive of bringing them to maturity, so

When Zimmerman, under instructions from Sage, said to Miller, "All right," or "An right, go ahead," whichever was the language used, and Miller declined to proceed without a more thorough understanding with Zimmerman, which understanding was had by directions from Sage to Zimmerman, and thereafter the amalgam was taken in pursuance of that understanding and in the immediate presence of Zimmerman, and with his knowledge and apparent approval, under instructions from his superiors, I think a caseis presented which amounts to consent upon the part of the milling company.

The fact that there is evidence in this case that would support a conclusion by the jury that the several defendants had originated the plan to commit a larceny, and had conspired to that end, is not alone sufficient to constitute the asportation of the amalgam, in pursuance of that conspiracy, a larceny. The several rules deducible from the authorities are, in my judgment, substantially as follows: Where the owner, suspecting criminal intentions upon the part of the defendant, originates a plan to entrap him and actively aids in carrying it out, the courts universally hold no larceny is committed. Upon the contrary, where the scheme originates with the accused, a larceny is held to have been committed, where the owner goes no farther than to facilitate the previously designed plan, and passively permits its being carried out by the accused in every material part. But, although the scheme originates with the accused, if the owner, upon becoming aware of the same, actively encourages or aids the accused to carry out the plan, in order that he may seek to punish, no larceny is committed, for the reason that such aid or active encouragement is deemed to amount to consent. Especially is this so where the scheme is not feasible without the co-operation of the owner's agent, and the owner, as in this case, directs the agent to so co-operate.

Some very serious questions are presented upon the record as to the admissibility of evidence, but, if my view of the case is correct upon the main point, it would be unnecessary to consider them, and for that reason I express no opinion upon them.

ERTY.

If a declaration of homestead is filed on community property by either spouse, the homestead vests in the survivor on the death of either, and the court must set aside the homestead in community property, even though it was not declared during the life of a deceased spouse; the property being exempt from debts of the surviving spouse or sale under execution. [Ed. Note. For other cases, see Homestead, Dec. Dig. § 134.*]

6. HOMESTEAD (§ 141*) - RIGHT OF WIDOW SEPARATE PROPERTY.

St. 1861, c. 55, regulating the settlement of estates, provided in section 123 for the setting aside of the homestead to the widow and minor children, and section 126 provided that if there was no law in force exempting property aside, including the homestead, as defined in from execution certain property should be set that section. Homestead Act 1865 (St. 186465, c. 72) § 1, as amended in 1879 (St. 1879, c. 131; Comp. Laws, § 550), provided that if property declared a homestead be separate property both must join in the declaration, and if it remain separate property until the death of one spouse homestead rights therein shall cease, and it belonged when filed upon; and section 4 (St. it shall belong to the party or his heirs to whom 1879, c. 131; Comp. Laws, § 553) provided that no exemption to the surviving spouse should be allowed, where the homestead declaration had been filed upon the separate property of either spouse, as provided in section 1. Act 1897, §

I think the judgment should be reversed. 101 (St. 1897, c. 106; Comp. Laws, § 2886), au

(34 Nev. 217)

In re COOK'S ESTATE. (No. 1,918.) (Supreme Court of Nevada. Aug. 5, 1911.) 1. APPEAL AND ERROR (§ 559*)-RECORD-MoTION FOR NEW TRIAL.

The order denying the motion for a new trial, or the minute entry thereof, must be contained in the statement on appeal to give the Supreme Court jurisdiction.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.*]

2. APPEAL AND ERROR (§ 654*)-DIMINUTION

OF RECORD-ORDER DENYING NEW TRIAL.

Where the clerk's certificate referred to an "appeal from the order denying a new trial herein," the Supreme Court may, on appellant's application, permit him to supply the order by filing a minute entry thereof, so as to enable the Supreme Court to consider the appeal, though the statement on appeal originally did not contain the motion for a new trial, or a minute entry thereof.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2819-2822; Dec. Dig. § 654.*]

3. APPEAL AND ERROR (§ 596*) — RECORD PREPARATION PERSONAL SUPERVISION OF

thorizes the court, upon the return of the inventory, to set apart for use of decedent's family the homestead as designated by the general homestead law "now in force,' whether designated as required by said law or not; and further provides that if the property declared upon be separate property both spouses must join in the declaration, and if it remain separate property until the death of one of them the homestead rights shall cease, and it shall belong to the party to whom it belonged when filed upon. Section 126 of the act of 1861 was omitted from the act of 1897, and section 123, corresponding to section 101 of the latter act, was modified. Held, under section 101, construed with the other statutes, that a widow cannot have set apart to her as a homestead land which was her husband's separate property at his death, and had not been declared on as a homestead; there being other heirs.

[Ed. Note.-For other cases, see Homestead, Cent. Dig. §§ 261-270; Dec. Dig. § 141.*]

Appeal from District Court, Ormsby County; Frank Langan, Judge.

In the matter of the estate of Walter M.

Cook, deceased. From a judgment and order denying the petition of Clara Louise Cook for a homestead out of decedent's separate property, petitioner appeals. Affirmed. Counsel should personally supervise the Platt & Gibbons, for appellant. Wm. making up of the record on appeal and not rely Woodburn and J. Poujade, for respondents. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

COUNSEL.

son Case, supra, the motion to dismiss herein would have to be granted. There is, however, this distinguishing feature which vests this court with sufficient jurisdiction to take hold of this appeal, and decide the very in

SWEENEY, C. J. This is an appeal from not distinguishable from the Kirman v. Johnthe judgment and order of the lower court refusing to set aside a homestead to the widow from the separate property of the husband, dying intestate. It appears that Walter M. Cook died intestate, leaving surviving him his widow, Clara Louise Cook, the ap-teresting and important issue involved herepellant herein, who, with sisters, nieces, and in and never before determined in this state. a nephew, are his sole and only heirs at law. In the Kirman v. Johnson Case, supra, Among other property, his estate consisted among other matters in relation to the recof a tract of land, upon which appellant and ord therein presented, we stated: “An exdeceased, in his lifetime, lived, and which amination of the papers appearing to have they occupied as their home. It is conceded been sent up in this case fails to disclose that this tract of land was the separate any order in reference to the motion for property of the deceased, and that the same a new trial, or a copy thereof, nor does the does not exceed in value the sum of $5,000. | certificate of the clerk mention any such orIt further appears there was no community der. So far as the record shows, there may property in this estate. It also appears in never have been such an order made." the record that no homestead was declared upon the separate property of the deceased, Walter M. Cook, by himself or appellant, or that any homestead whatever was reserved by either of them from any property belonging to deceased or the appellant herein.

Appellant filed her petition asking to have this particular tract of land, together with the dwelling house situated thereon, and on which appellant and the deceased resided prior to and at the time of the death of deceased, and on which the appellant presently resides, set aside to her as a homestead, and the same was contested by other heirs at law of the deceased. After a hearing of the contest upon this issue, the court found the tract of land and dwelling house thereon in question not to exceed 'the value of $5,000, and to be property of such character that, had it been filed upon during the lifetime of the deceased, it could have been homesteaded, but that under the laws of Nevada the court had no authority to set aside the separate property of the deceased husband as a homestead to the surviving wife, when the property remained the separate property of deceased at the time of his death.

The transcript on appeal, when resolved into the legal query for us to answer, is, Has the district court, when acting as a probate court, the power and authority to set aside as a homestead for the surviving wife separate property of the deceased husband?

[1] Preliminary to passing upon this question, however, it will be necessary to pass upon respondents' motion to dismiss the appeal, interposed upon the ground that the statement on appeal fails to contain the order of the lower court denying the motion for a new trial, from which this appellant has appealed. Among other authorities, in support of their contention, respondents rely chiefly upon the case of Kirman v. Johnson, 30 Nev. 146, 93 Pac. 500, 96 Pac. 1057. In that case we properly held, that "the order of the lower court denying the motion for a new trial, or, in its absence, the minute entry thereof, is required to be embodied in the statement on appeal to clothe this court with jurisdiction." If the case at bar was

[2] In the case now under consideration, the certificate of the clerk does mention and refer to an "appeal from the order denying a new trial herein." In the Kirman v. Johnson Case there was no suggestion of a diminution of the record prior to or at the time of the argument on motion to dismiss; while in the present case an application was made to the court by counsel for appellant for the privilege of supplying the order denying the motion for a new trial, and the court, subject to the objection of counsel for respondents, granted the appellant the privilege of supplying the order within three days time; and the appellant, in compliance with such privilege, had filed within the time allowed a minute entry of said order complained of as absent from the record, and the same is now a part of the record on appeal before us.

[3] While counsel for the appellant have gone to the extreme limit of the danger line of dismissal, by their oversight or inadvertence in failing to have their record contain this most essential paper in the first instance for the consideration of this court on appeal, and by the grace of a court rule and the indulgence of the court their appeal has been saved, yet, notwithstanding this close escape from a dismissal of the action without having the point involved passed on its merits, we feel it our duty to admonish counsel for appellant in the present case, and by this means warn other attorneys who are negligent in the preparation of their records on appeal, in future to personally supervise the making up of their records on appeal, and not to trust important rights to be jeopardized by relying upon the various clerks of the lower courts who, although entirely honest, willing, and conscientious, yet, by reason of the technical requirements of the statute, are not qualified enough in the knowledge of the law to prepare perfectly difficult transcripts containing all the essential papers. All attorneys should make it their especial duty to examine their transcripts on appeal before or at the time the transcripts leave the hands of the clerk of the lower court, when possible, and if a de

fect escapes their attention there, when dis- | of them, as the case may be, are, at the time covered, within a sufficient length of time of making such declaration, residing with before a motion to dismiss is set for hearing their family, or with the person or persons in this court, to avail themselves of any of under their care and maintenance on the their rights under the court rules at once, premises, particularly describing said premand not wait until the time the motion is ises, and that it is their intention to use and being heard to apply to the indulgence of claim the same as a homestead, which decthis court for relief, to the end that all cas- laration shall be signed by the party or pares may be heard on their merits. It is al- ties making the same, and acknowledged ways distasteful to this court and an un- and recorded as conveyances affecting real pleasant duty to have to dismiss an appeal estate are required to be acknowledged and because of some inadvertence, neglect, or recorded; and from and after the filing for oversight of counsel, and particularly where record of said declaration, the husband and important rights and questions involved wife shall be deemed to hold said homestead should be decided on their merits. as joint tenants; provided, that if the property declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead rights shall cease in and upon said property, and the same belong to the party (or his or her heirs) to whom it be

[4] We come now to a consideration of the sole and only issue presented to us, to wit, as to whether or not a widow is entitled to have set apart to her as a homestead the land and dwelling house thereon, when the same is the separate property of her husband at the time of his death, and there are other heirs. Before answering this question, in view of the fact that the right of homestead did not exist at common law, and is one of statutory origin, and that whatever home-longed when filed upon as a homestead; and, stead rights exist must be by virtue of the statutory law of the state and the construction given by the courts to those statutes, it will be necessary, in order to arrive at a proper solution of this question, to examine the homestead acts of this state, the same being embodied in the homestead act of March 6, 1865, as amended in 1879, and as further throwing some light on the point at issue, those sections of law now in force in reference to the estates of deceased persons, which deal with homesteads and the duty of the probate judge with reference thereto.

Section 1 of the homestead act of 1865 (St. 1864-65, c. 72), as amended in 1879 (St. 1879, p. 140; Compiled Laws, § 550), provides as follows: "The homestead, consisting of a quantity of land, together with the dwellIng house thereon and its appurtenances, not exceeding in value five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any court, for any debt or liability contracted or incurred after November thirteenth, in the year of our Lord one thousand eight hundred and sixty-one, except process to enforce the payment of the purchase money for such premises, or for improvements made there on, or for legal taxes imposed thereon, or for the payment of any mortgage thereon, executed and given by both husband and wife, when that relation exists. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. Said declaration shall state when made by a married person or persons that they or either of them are married, or if not married, that he or she is the head of a family, and they or either

provided further, that tenants in common may declare for homestead rights upon their respective estates in land, and the improvements thereon; and hold and enjoy homestead rights and privileges therein, subject to the rights of their co-tenants, to enforce partition of such common property as in other cases of tenants in common."

Section 4 of said act (St. 1879, p. 141; Compiled Laws, § 553) provides as follows: "The homestead and all other property exempt by law from sale under execution, shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit and that of his or her legitimate child or children; and in the event of there being no surviving spouse, or legitimate child or children of either, then the property shall be subject to administration and to the payment of his or her debts and liabilities; provided, that the exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers and sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of grandparents, or unmarried sisters living in the house with them; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person, the property shall descend to his or her heirs, as in other cases, unless disposed of by will, subject to administration and the payment of debts and liabilities; and, provided further, that no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife, as provided in section one of this act; pro