vided, nothing in this act shall be held or construed to in any manner affect existing rights or pending litigation; but all such rights and litigation shall be determined by the act before in force, and of which this act is amendatory."

Section 101 of an act to regulate the settlement of the estates of deceased persons, enacted in 1897, and now in force (St. 1897, p. 134; Compiled Laws, § 2886) provides as follows: "Upon the return of the inventory or at any time thereafter during the administration, the court or judge, of his own motion or on application, may set apart for the use of the family of the deceased all personal property which is exempt by law from execution, and the homestead as designated by the general homestead law now in force, whether such homestead has theretofore been selected as required by said law or not, and the property thus directed to be set apart shall not be subject to administration." It is conceded by both parties in the present case that the homestead now attempted to be carved out of the estate of the deceased was at all times during the marriage of deceased, prior to his death, and at the time of his death, the separate property of the deceased, and, further, that at no time was there ever a declaration of homestead filed by either party upon said property in controversy.

[5] This court has repeatedly and properly held, under our homestead laws, that if the property be community property, and a declaration of homestead has been filed thereon by either party, the homestead at the time of the death of either spouse vests in the survivor (Smith v. Shrieves, 13 Nev. 303); and that, where the property is community property, the homestead right does not cease on the death of one of the spouses (Roberts v. Greer, 22 Nev. 318, 40 Pac. 6, 58 Am. St. Rep. 755); and that, where the property involved is community property, the court must set aside the property to the surviving spouse, even though it were not declared upon during the life of the deceased (Estate of David Walley, 11 Nev. 260); and that, in a case where a person is entitled to a homestead right to community property upon the death of either party, even though childless, the homestead right does not cease, and the property is exempt from the debts of the surviving spouse, or forced sale by execution. Roberts v. Greer, 22 Nev. 318, 40 Pac. 6, 58 Am. St. Rep. 755. In the present case, however, the property involved being conceded separate property, a new and different question presents itself.

[6] It is strongly insisted by counsel for appellant that it is immaterial whether the property be separate or community property at the time of the death of the husband, and that the district court is privileged, and it is its duty, under the power vested in the court by section 101 of the act regulating the estates of deceased persons, supra, to set aside a homestead for the surviving

spouse. In answer to this contention, it must be stated that the district court has no authority to create a homestead otherwise than as designated by existing statute, and the statute plainly negatives the position of appellant as to separate property wherein it says: "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 spouse, then and in that event the homestead right shall cease in and upon said property, and the same belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead.

It is unnecessary to determine, under the act of 1861 (St. 1861, c. 55), regulating the settlement of estates of deceased persons. prior to the amendment of the homestead act of 1865 by the amendment of 1879, whether the district court, acting in estate matters, had the power to set aside a homestead to the widow out of the separate property of the deceased husband. The homestead act of 1865, as well as the original homestead act of 1861, made no distinction between separate and community property. Separate and community property were not defined by statute until 1873, when "An act defining the rights of husband and wife" was adopted (Compiled Laws, §§ 510-544), excepting that the separate property of the wife was defined in the Constitution. Article 4, § 31. The amendment of 1879 to the homestead act worked a radical change in the former provisions, and by clear and unmistakable language the Legislature evinced its intent that the homestead exemption as to separate property should only exist where both husband and wife joined in the declaration, and then that it should cease upon the death of either spouse, and the property "belong to the party (or his or her heirs) to which it belonged when filed upon as a homestead." By this amendment, separate property, upon the death of either spouse, stood in the same condition as though no homestead right had ever attached. The Legislature was particular to provide that if it was the separate property of the surviving spouse it still was the separate property of such spouse, freed from the homestead exemption, and that if it was the separate property of the deceased spouse it should descend to his or her heirs, likewise freed from the homestead exemption.

The act of 1861, regulating the settlement of estates of deceased persons, by section 123, made provision for the setting aside the homestead, as designated by the homestead law, to the widow and minor children, and to the widow in the event there were no minor children; and by section 126 of the same act it was provided that, in the event there was no law in force exempting property from execution, certain specified property should

On the hearing it was contended by the Attorney General that, inasmuch as the evidence in question was not admitted for the purpose of showing subsequent acts of sexual intercourse, and since it was not shown that in occupying the room the appellant and the prosecutrix did have sexual intercourse after the night of the 11th of July, which latter fact was essential to constitute separate and independent offenses, therefore the admission of the evidence, even though not proper, nevertheless could not have prejudiced the appellant, because it did not amount to proving separate and distinct offenses. It is conceded by the Attorney General that in this jurisdiction the rule is now firmly established that separate and independent acts of sexual intercourse, occurring after the one complained of and upon which the state relies for a conviction, are not admissible as evidence in prosecutions like the one at bar; but he contends that for the reasons last stated the evidence admitted in this case does not come within the rule laid down in the case of State v. Hilberg, 22 Utah, 27, 61 Pac. 215, the leading case in this state upon that subject. We are of the opinion, however, that in principle there is no difference between the evidence condemned in the Hilberg Case and that which was admitted in the case at bar. True it was not shown in this case that in occupying the room during the nights of the 12th and 13th of July the appellant and the prosecutrix actually indulged in sexual intercourse. In this regard the question, however, arises, what other possible inference would the jury, or any one else, draw from the occupancy of the room than that it was occupied for that purpose, and for no other? What other purpose could the evidence subserve than the one just indicated? We confess that we can conceive of no other. In any event, such was its natural and probable effect; and hence it comes within the rule laid down in the Hilberg Case, supra. It may be that in prosecutions for sexual crimes subsequent acts of the parties not amounting to independent offenses, under certain circumstances, may be admissible in evidence as corroborative of the principal act sought to be established; but the case at bar does not come within that class of cases. While in prosecutions for sexual offenses the

We remark that in the case at bar the court, upon the request of appellant, charged the jury that the subsequent acts occurring on the 12th and 13th of July were admitted in evidence "merely for the purpose of corroboration," and for no other purpose. In view that appellant requested this instruction, he cannot complain; but, since our silence upon this subject might be taken as a tacit approval of the doctrine contained in the aforesaid charge, we desire to say that we cannot yield assent to the proposition that acts of the kind testified to by the. prosecutrix in this case, occurring subsequent to the one charged in the information and relied on for a conviction, are admissible as corroboration of the principal offense. In this case no one testified to the act of sexual intercourse occurring on the 11th of July, except the prosecutrix; nor did any one except she testify to the subsequent conduct occurring on the 12th and 13th of July. It must follow, therefore, that in view of the court's charge the statements of the prosecutrix with regard to what occurred on the 12th and 13th must be taken as corroboration of her statement of what occurred on the 11th. It would seem to require neither argument nor authority to show that a witness cannot corroborate one fact testified to by himself by merely testifying to a similar fact occurring at a different or subsequent time. If, however, authority be necessary upon this question, we refer to the case of Smith v. State, 73 S. W. 401, where Mr. Justice Brooks, in speaking for the Court of Criminal Appeals of Texas, refutes the proposition.

While, as we have seen, the court erred in admitting the evidence with respect to the criminal conduct of appellant and the prosecutrix on the nights of the 12th and 13th of July, yet the question whether the error was prejudicial to the rights of appellant still remains to be answered. If the error was without prejudice, he cannot be heard to complain. After a careful examination of the evidence and the law applicable thereto, we are of the opinion that the appellant was not prejudiced in any substantial right by the admission of the evidence referred to. Appellant became a witness and testified on his own behalf upon the merits of the case. He gave his age as 34 years, and in substance stated that he was acquainted with the prosecutrix; that she told him in May, 1909, that she was 19 years of age; that he did not at any time promise to marry her; that he had

the statements which were derogatory to the veracity of the first witness were in all probability true and could not be truthfully denied or explained. This is an inevitable inference in view of the witness' failure to deny or explain. Must not one accused of crime under the same conditions and circumstances be judged by the same rules as others are? Can a person on trial, after becoming a witness, escape the legal consequences of his own acts and conduct any more than any other witness? We think not. One ac cused of crime may refuse to become a witness, or may become such only with regard to some formal matter not affecting the merits of the case, and his failure to take the stand and deny or explain any fact or facts, although known to him, and however inculpatory, cannot be used against him, either directly, indirectly, or otherwise. It would, however, be a travesty of justice and a reproach to the law itself if it were held that a person on trial may with impunity testify to such acts only as he chooses, and in doing so pass over all facts testified to by others that may implicate him, and still escape the legal inferences and consequences of his acts and omissions. Criminal procedure was not conceived to prevent the guilty from being punished, but was conceived and established to protect the innocent. In view of appellant's failure to deny the most prominent fact, namely, the sexual act, while disputing the statement of the prosecutrix that he had promised to marry her, both of which must have been equally within his knowledge, permits of but one inference or legal deduction, which is that what the prosecutrix said with regard to the sexual intercourse is substantially true. If, therefore, such be the legal effect of the appellant's conduct as a witness, how can it be contended that he suffered in any substantial right by the admission of evidence which at most could only be considered for the sole purpose of establishing the very fact which he in legal effect admitted by failing either to deny or explain, when possessing the ability and having the opportunity to do so? We repeat that to reverse judgments of conviction under such circumstances would be a mere travesty of justice.

It is suggested, however, that, in view that the prosecutrix on a former occasion and under oath stated that her age at the time the sexual intercourse took place was 19 years, therefore her statements at the trial that she was only 17 should have no weight, and that the latter fact should be kept in mind in determining whether the admission of the subsequent acts were prejudicial to the rights of the appellant. We confess our entire inability to understand in what way either the admission or the exclusion of the evidence respecting the acts of appellant and the prosecutrix subsequent to the 11th day of July could have affected the question of whether she was 17 or 19 years of age at

that time. The question of the age of the prosecutrix, as well as the weight that should be given her testimony, was a question solely for the jury. It is wholly unreasonable to say that the mere fact that the prosecutrix testified that she and the appellant occupied the same room on the nights of the 12th and 13th of July, as well as on the night of the 11th had the effect of inducing the jury to accept her statement with regard to her age, or that it had any effect with regard to that fact whatever. Such a claim is wholly without merit, and yet it is the only one that can be urged in favor of reversing the judgment in this case. If it be true that appellant had sexual intercourse with the prosecutrix at a time when she was between 13 and 18 years of age, then he should be punished. He in legal effect admits that he had sexual intercourse, and the jury found that the age of the prosecutrix was as testified to by her on the trial. Upon the latter question the record is entirely free from error.

The judgment therefore should be, and it accordingly is, affirmed, with costs.

STRAUP, J. I concur in the result.

MCCARTY, J. (concurring). In State v. Greene, 115 Pac. 181, recently decided by this court, the defendant was tried and convicted of adultery. In that case an affidavit purporting to be the affidavit of the woman with whom it was alleged in the information that Greene, on July 18, 1906, committed the offense was, over the objection of the defendant, admitted in evidence. It was recited in the affidavit that the affiant was the mother of an infant child, born April 18, 1907, and that Greene was the father of the child, and that the affiant "had sexual intercourse with said Webster Greene at divers times and occasions at Mt. Pleasant, Utah, between February 1, 1906, and October 1, 1906, both inclusive." It will be observed that it was alleged in the affidavit that Greene had sexual intercourse with the woman therein referred to both before and after the particular act for which he was convicted. In the prevailing opinion handed down in that case, it is held that the admitting of the affidavit in evidence was not error. True, it is held in the opinion that the principle announced and followed in the Hilberg Case was in no way involved in the case then under consideration. But I now insist, as I then contended, that precisely the same principle was involved in both cases, and that the affirmance of the judgment in the Greene Case in effect overruled the Hilberg Case. Therefore, if the rule adhered to in the Greene Case is to be followed, it necessarily follows that the judgment in the case at bar must be affirmed, as that case is decisive of this.

But even if the doctrine announced in the Hilberg Case is to govern, I fully agree with the Chief Justice that the error, if any, in