1. FALSE PRETENSES-PRESENTATION OF CLAIM TO PUBLIC OFFICER-BOUNTIES.

Laws 1905, p. 122, c. 63, § 4, makes offering a scalp of any wild cat killed prior to the passage of the act or killed outside of the state a misdemeanor. Ballinger's Ann. Codes & St. 7165 (Pierce's Code, § 1662), provides for the punishment of any person who, with intent to defraud another, shall by false pretense obtain anything of value. An information charged accused with delivering to a deputy county auditor 30 wild cat scalps, falsely pretending that he had killed the wild cats in that county within three months prior to the time when they were delivered to such deputy auditor. Held, that he was properly prosecuted under section 7165, as it did not appear that the offense described in section 4 had been committed. 2. CRIMINAL LAW-TRIAL - INSTRUCTIONS REASONABLE DOUBT.

An instruction that a reasonable doubt should "only" be entertained from the want of evidence to satisfy the jury beyond a reasonable doubt and should not be merely imaginary, speculative, or conjectural is not calculated to mislead or confuse the jury, because such a doubt may also arise from the nature of the evidence given, especially as taken with other instructions it was substantially correct.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1906–1922.]

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

George King was convicted of obtaining money under false pretenses, and appeals. Affirmed.

Fairchild & Bruce, for appellant. Virgil Peringer and George Livesey, for the State.

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ROOT, J. Appellant was prosecuted upon an information, the substance of which was as follows: "The defendant about the 5th day of July, 1906, did present and deliver to Will D. Wallace, deputy auditor of Whatcom county, * thirty wild cat scalps, * and did unlawfully pretend that he had killed the wild cats * * * from which the said thirty wild cat scalps had been taken in Whatcom county # * * within three months immediately prior to the said 5th day of July, 1906, whereas said defendant * had not killed said wild cats in said Whatcom county, and had not killed said wild cats within a period of three months, * * and said defendant did * * by the color of said false pretenses * obtain from Whatcom county the sum of seventy-five dollars in money, as bounty for said scalps." From a judgment of conviction, he appeals to this court.

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A demurrer was interposed to the information upon the ground that it did not state a cause of action. The demurrer was overruled. The prosecution was had under section 7165, Ballinger's Ann. Codes & St. (Pierce's Code, § 1662). It was contended by appellant that section 4, c. 63, p. 122, Laws 1905, covers

the offense alleged to have been committed, if any offense is alleged, and that it renders section 7165, Ballinger's Ann. Codes & St. (Pierce's Code, § 1662), inapplicable to the particular facts of this case. The substance of said section 4 is as follows: "Any person * offering for the purpose of obtaining said bounty the scalp of any wild

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* * killed prior to the passage of this act, or that were killed outside of the boundaries of the state of Washington, shall be deemed guilty of a misdemeanor," etc. Did it affirmatively appear that the wild cats were killed outside of the state of Washington, or prior to the passage of the act in ques tion, there would be no doubt of the soundness of appellant's contention; but such does not appear. They may have been killed in any other county than Whatcom in this state, or at any time since the passage of the act and prior to a date three months preceding that upon which appellant presented the scalps to the county auditor for the bounty. We think the demurrer was properly overruled.

It is urged that the evidence is insufficient to sustain the verdict. We think there was sufficient competent evidence to justify the conclusion reached by the jury. Exceptions were taken to certain questions asked of fur experts with reference to the appearance and condition of the scalps. We have examined these, and think no error was committed.

Certain other assignments of error are predicated upon the ruling of the court as to the introduction of testimony, but we do not find any reversible error. The trial court gave the jury among others an instruction which was, so far as material here, in substance as follows: "You are instructed further, gentlemen of the jury, that a reasonable doubt for a trial juror, *. But such doubt should only be entertained from the want of evidence to satisfy you beyond a reasonable doubt and should not be merely imaginary, speculative, or conjectural." Appellants complain of the latter portion of this instruction, urging that it told the jury that a reasonable doubt could be entertained only from want or lack of evidence, whereas it might arise from the want of evidence or from the nature of the evidence itself if it were such as to cause a reasonably prudent man to hesitate that the instruction was calculated to mislead and confuse the jury. We do not believe that the instruction could have had this effect. Taken together with the other instructions given in the case, we think it was substantially correct and incapable of prejudicing appellant's rights.

Finding no reversible error in the record, the judgment is affirmed.

HADLEY, C. J., and CROW and MOUNT, JJ., concur. FULLERTON, J., concurs in the result.

Laws 1899, p. 93, c. 53, § 15 (Ballinger's Ann. Codes & St. § 5296; Pierce's Code, § 888), providing that in case of any homestead occupied for the purpose at the time of sale the judgment debtor may retain possession thereof during the period of redemption without accounting for issues or value of occupation, is not in violation of Const. art. 1, § 12, which provides that no law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens or corporations, since the statute acts equally upon all debtors so situated. 2. HOMESTEAD-FORECLOSURE OF MORTGAGEPOSSESSION DURING REDEMPTION PERIOD.

Covenants of warranty contained in a mortgage do not prevent the mortgagor from asserting the right granted to him by Laws 1899, p. 93, c. 53, § 15 (Ballinger's Ann. Codes & St. § 5296; Pierce's Code, § 888), which allows a judgment debtor to retain possession of any homestead during the period of redemption, without accounting for issues or value of occupa tion.

3. SAME.

Laws 1899, p. 93. c. 53, § 15 (Ballinger's Ann. Codes & St. § 5296; Pierce's Code, § 888), providing that in case of any homestead occupied for the purpose at the time of sale the judgment debtor may retain possession thereof during the period of redemption, should be liberally construed, and it is sufficient that the judgment debtor asserts his homestead claim while yet in the possession of the premises, and after sale under foreclosure. 4. SAME.

On an application for a writ of assistance by the purchaser at a foreclosure sale, where the mortgagors filed an affidavit and declaration of homestead, claiming the right to possession during the period of redemption, in accordance with Laws 1899, p. 93, c. 53, § 15 (Ballinger's Ann. Codes & St. § 5296; Pierce's Code, § 888), plaintiff could not contend that the homestead claimed was of greater value than by law exempted for such purposes, where no attempt was made to appraise or segregate the exempt portion.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Application for writ of assistance by the North Pacific Loan & Trust Company against Charles M. Bennett and wife. From a denial of petition, plaintiff appeals.

A. D. McLaren, for appellant. Crane, for respondents.

Affirmed. Clausen &

ROOT, J. To secure the payment of two promissory notes respondents Bennett gave a mortgage upon certain real estate in Spokane county. Default in payment having been made by mortgagors, appellant foreclosed upon the property in question, and, at the sale thereof, became the purchaser. The mortgagors were in possession of the property at the time of the sale, and declined to surrender possession to the purchaser. The latter applied for a writ of assistance. Upon return on an order to show cause the mortgagors filed an affidavit and declaration of

homestead, and claimed the right to remain in possession of the property during the period of redemption, under the provisions of section 15, c. 53, p. 93, Laws 1899 (Ballinger's Ann. Codes & St. § 5296, Pierce's Code, § 888). Thereupon the trial court denied the petition for a writ of assistance. From this order of denial, the present appeal is prosecuted.

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Appellant, in support of its claim for a reversal, urges five contentions, as follows: That the provision of the statute referred to, supra, reading as follows: "Provided, further, that in case of any homestead occupied for the purpose at the time of sale, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or value of occupation"-is unconstitutional, be cause in violation of the following constitutional provision: "No law shall be passed granting to any citizen, class of citizens or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations." Const. art. 1, § 12. (2) A mortgage containing covenants of warranty prevents the mortgagor therein from doing any act which would be contrary to his covenant to defend the title. (3) That a homestead cannot be claimed by a judgment debtor after an execution or foreclosure sale of the premises described in his declaration of homestead. (4) That the homestead herein claimed is admittedly of greater value than by law exempted for such purpose. (5) That, where a homestead exemption is claimed, only such premises or part thereof as are occupied by the judgment debtor for the purpose of a residence for himself and family, and not exceeding $2,000 in value, will be allowed. We are unable to agree with any of these contentions. The statute in question is in the nature of an exemption law, and is a declaration of the state's public policy relative to premises occupied by a judgment debtor as a homestead. It acts equally and impartially upon all such debtors so situated. This is sufficient to dissipate the charge that it contravenes the constitutional provision invoked. State v. Wagener, 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677, 65 Am. St. Rep. 565; 6 Am. & Eng. Enc. of Law (2d Ed.) 80. As to appellant's second proposition, it is sufficient to answer that the covenants of warranty in the mortgage must be read with this statute, which was in force at the time the mortgage was executed.

Appellant's third contention calls for a strict construction of the law, whereas courts have almost universally given a liberal construction to statutes of this character. In view of their benevolent purpose, it is highly appropriate that they should be liberally construed. 15 Am. & Eng. Enc. of Law (2d Ed.) 523. Inasmuch as the judgment debtors asserted their homestead claim while yet in the possession of the premises, we think it was

within due time. Anderson v. Stadlmann, 17 Wash. 433, 49 Pac. 1070; Wiss v. Stewart, 16 Wash. 376, 47 Pac. 736; Philbrick v. Andrews, 8 Wash. 7, 35 Pac. 358.

As to the fourth and fifth contentions, it may be observed that no proceedings to appraise or segregate the portion or amount exempt have been attempted, and it is doubtful if such are contemplated under the statute in a case of this kind. It is unnecessary, however, to pass upon the latter question.

Finding no error in the order of the trial court, the same is hereby affirmed.

Under Ballinger's Ann. Codes & St. §§ 4709. 4712, enumerating legal holidays and providing that no court shall transact business on legal holidays, except to give instructions to a jury when deliberating, receive the verdict of a jury, etc., a judgment entered on a judicial day will not be reversed because the court inadvertently and without objection from the party complaining received evidence, heard arguments of counsel, and filed its decision on a legal holiday, though it is error for a court to transact judicial business on such holiday.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Holidays, §§ 2-5.]

Writ of review by the state, on the relation of George W. Walter, against the superior court of Whitman county to review a judgment. Judgment affirmed.

Frank C. Owings and E. K. Hanna, for plaintiff.

CROW, J. On October 17, 1907, one E. S. Burgan, a qualified elector of the city of Pullman, applied to the superior court in and for Whitman county for a writ of mandamus to compel George W. Walter, the city clerk, to register the plaintiff and other qualified electors; there being a dispute between them and the defendant as to the ordinance under which, and the ward in which, they were entitled to registration. After issue joined, trial was commenced and evidence introduced on October 29, 1907. The cause was then adjourned to October 30, 1907, at which time additional evidence was admitted and arguments of counsel were made. On the morning of October 31, 1907, the trial judge prepared a written opinion, announcing his decision, and giving his reasons therefor. Copies of this opinion were forthwith delivered to the respective counsel and filed with the clerk. On November 1, 1907, the parties again appeared by their counsel, at which time findings of fact, conclusions of law, and a final judgment awarding a peremptory writ

of mandamus were prepared, signed, and fil ed. The defendant interposed a motion for a new trial, which was denied. The annual municipal election was about to be held in the city of Pullman, and the city clerk, G. W. Walker, alleging he had no remedy by appeal, applied to this court for a writ of certiorari with an order of supersedeas to review the judgment of the superior court. The writ was granted, but without any supersedeas. On the final hearing and review we on November 11, 1907, concluded that the judgment of the superior court should be affirmed, but, in the absence of any supersedeas, delayed this opinion until it could be reached in the regular order of business. On the morning of October 30, 1907, the Governor of the state of Washington, under authority of section 4709, Ballinger's Ann. Codes & St., issued the following proclamation:

"Whereas, a proclamation was issued October 29, 1907, by the Governor of Oregon declaring a legal holiday in said state extending through the week until Saturday, November 2, 1907; whereas, it is made to appear that the closing of the Oregon banks by virtue of said proclamation will cause injury and embarrass. ment to certain banking interests of the state of Washington transacting business with certain banks of Oregon:

"Now, therefore, in order to protect the interests of the banks of the state of Washington so affected, I, Albert E. Mead, Governor of the state of Washington, by virtue of the authority in me vested, do proclaim Wednesday and Thursday, October 30 and 31, 1907, legal holidays.

"In witness whereof, I have hereunto set my hand and caused the seal of the State to be affixed at Olympia, this Thirtieth day of October, A. D. Nineteen Hundred and Seven. Albert E. Mead.

"By the Governor: Sam H. Nichols,
"[Seal.]
Secretary of State."

The relator contends that October 30th and 31st, thus declared to be holidays, were each dies non juridicus, on which no judicial business could be transacted; that the final judgment was based upon evidence admitted on such nonjudicial days; that the trial judge announced his decision on a legal holiday; and that the final judgment which was subsequently signed and entered was void. The record shows that the relator interposed no objection to hearing the cause on October 30th and 31st; that the question here presented was not raised in the trial court by motion for a new trial or otherwise, but that it was first presented in this court. The respondent's attorney insists that the days named in the Governor's proclamation did not become legal holidays except as to banking, financial, and commercial matters, that they were judicial days, and that the Governor was without authority to declare more than one holiday in a single proclamation. For the purposes of this opinion, we will disregard these contentions, and assume, with

out deciding, that both days mentioned in the proclamation were legal holidays in contemplation of sections 4709, 4712, Ballinger's Ann. Codes & St. (sections 5447, 5448, Pierce's Code). It is conceded that the trial was commenced on a judicial day, that the final judgment was prepared, signed, and entered on another judicial day, and that the other proceedings above mentioned occurred on the alleged holidays. It is shown that neither the trial judge nor the parties had actual knowledge of the Governor's proclamation prior to noon of October 31st; that no daily paper was published in Colfax, the county seat; that the court and parties first learned of the proclamation through Spokane papers; and that at no time during the trial was objection made to holding court or to any of the proceedings. Undoubtedly the trial judge would have continued the cause until November 1st had he known of the proclamation. The relator, however, contends that the court and parties were presumed to have been aware of the proclamation which took immediate effect when issued; citing Lapeyre v. United States, 17 Wall. (U. S.) 191, 21 L. Ed. 606; United States v. Norton, 97 U. S. 164, 24 L. Ed. 907; McElrath v. United States, 102 U. S. 426, 437, 26 L. Ed. 189.

The only question presented is whether the final judgment entered on a judicial day became void by reason of prior judicial proceedings conducted on the holidays, to which the relator at the time failed to object, or to which, in other words, he impliedly assented. There is much conflict of authority as to the validity of judicial proceedings conducted on holidays. The relator contends that the evidence admitted and the arguments made on the holidays were considered by the trial court in reaching the final judgment; that the hearing and consideration of such evidence and arguments were void judicial proceedings, which entered into the final judgment and avoided it also. In support of this position he cites, with others, the following authorities upon which he bases his principal arguments: Davidson v. Munsey, 27 Utah, 87, 74 Pac. 431; Lampe v. Manning, 38 Wis. 673; State v. Green, 37 Mo. 466; Merchants' Nat. Bank v. Jaffray, 36 Neb. 218, 54 N. W. 258, 19 L. R. A. 316; Poor v. Beatty, 78 Me. 580, 7 Atl. 541: Hemmens v. Bentley, 32 Mich. 88; Ex parte Tice, 32 Or. 179, 49 Pac. 1038. We have carefully examined these and all other cases cited by the relator, and find that in no one of them, except Davidson v. Munsey, supra, was the final judgment or order, alleged to be void, entered or made upon a judicial day, as in this case. Lampe v. Manning, supra, relator's leading case, the cause was tried and the judgment was entered on a legal holiday. In State v. Green, supra, the giving of instructions to the jury in a criminal case was commenced on Saturday night, but completed after midnight, thus running into Sunday. Objection thereto was urged in the lower court by mo

In

tion for a new trial, and the Supreme Court of Missouri with much reluctance held that the final judgment of conviction was erroneous. In Merchants' Nat. Bank v. Jaffray, and Poor v. Beatty, supra, the orders claimed to be void were made and entered on holidays. In Hemmens v. Bentley, supra, a magistrate heard evidence on a judicial day, but made and entered the judgment on a holiday. In Ex parte Tice, supra, the Supreme Court of Oregon held that the act of a trial judge in discharging a jury on Sunday when they had failed to agree entitled the prisoner to be discharged, as he could not again be placed in jeopardy. This court in State v. Lewis, 31 Wash. 515, 72 Pac. 121, on a similar state of facts, after discussing the Tice Case, made a contrary ruling. With the exception of Davidson v. Munsey, supra, which by reason of our views hereinafter stated we disapprove, we have been unable to find any case based on statutes similar to our own, in which a judgment entered on a judicial day, after a portion of the trial had been conducted without objection on a holiday, was declared void. In Glenn v. Eddy, 51 N. J. Law, 255, 17 Atl. 145, 14 Am. St. Rep. 684, the court, in discussing statutory holidays other than Sunday, said: "The statutory dec laration that these days shall be legal holidays does not indicate an intent to assimilate their status to that of Sunday. 'Holiday,' in its present conventional meaning, is scarcely applicable to Sunday. Phillips v. Innes, 4 Clark & F. 234. It is applicable to all, and has long been applied to some of the days named. When the statute declares them to be legal holidays, it does not permit a reference to the legal status of Sunday to discover its meaning; for it proceeds to interpret the phrase, so far as it is prohibitory, by an express enactment declaring what shall not be done thereon. What it thus expresses is prohibited; what it fails to prohibit remains lawful to be done. The plain intent of the statute, therefore, is to free all persons upon the days named from compulsory labor, and from compulsory attendance upon courts as officers, suitors, or witnesses. Its true interpretation will limit the prohibition with respect to the courts to such actual sessions thereof as would require such attendance."

Although our statute (Ballinger's Ann. Codes & St. §§ 4709, 4712) names Sunday as a holiday, we think its evident intention is that litigants shall not be compelled to try their causes on that day or any other holiday. There is no language in section 4712, Ballinger's Ann. Codes & St., compelling us to hold a final judgment void simply because it may in part result from other preliminary judicial proceedings which, with consent or at least without objection, were conducted on a legal holiday. To do so would deprive the court of jurisdiction of the entire cause. Unquestionably it would be erroneous for a court to remain open and transact ju

dicial business on a legal holiday, and we assume that no trial judge in this state would knowingly do so. If for any cause one should unwittingly do so, no objection being interposed by parties present, and a judgment should thereafter be entered on a judicial day, this court most certainly would not declare such judgment void on the complaint of a consenting litigant who objects for the first time upon appeal or by writ of certiorari. Although we have found no case identical with this, the above principles have been substantially recognized by other courts, and also by this court. In Kaufman's Appeal, 70 Pa. 261, it was held that a confession of judgment delivered to a magistrate on Sunday would not vitiate a judgment entered on the following Monday. In State v. Duncan (La.) 43 South. 283, 10 L. R. A. (N. S.) 791, a criminal prosecution, it was held that a defendant who without objection had proceeded to trial on a holiday could not contend for the first time after conviction that the judgment against him was void. In Ehrlich v. Pike, 104 N. Y. Supp. 818, the controversy was referred to arbitrators who, after receiving evidence, met on Sunday, considered the cause, and decided upon an award, which was made, published, and delivered on the following Monday, but the Appellate Division of the Supreme Court of New York held the award valid. See, also, Houston, E. & W. Tex. Ry. Co. v. Harding, 63 Tex. 162; Bradley v. Claudon, 45 Ill. App. 326; Foster v. Toronto Ry. Co., 31 Ontario Rep. 1; Latta v. Catawba Electric & Power Co. (N. C.) 59 S. E. 1028. In McClellan v. Gaston, 18 Wash. 472, 51 Pac. 1062, although it was conceded that legal service of a summons could not be made on a holiday, this court held the defendant estopped from denying the legality of service admitted by him upon a holiday. In Stewart v. State Board of Medical Examiners (Wash.) 94 Pac. 472, the applicant, Stewart, by collateral action and attack, endeavored to enjoin the state board of medical examiners from enforcing a judgment of the superior court of Pierce county, which he alleged was void because the trial judge had heard arguments on a demurrer, and had directed. the judgment on a legal holiday. He made no allegation that evidence was admitted or considered, that the final judgment was actually entered on a holiday, or that he had objected to any of the proceedings. The substance of his contention was that the preliminary judicial business transacted on a legal holiday avoided the final judgment, and that the court thereby so completely lost its jurisdiction of the cause that it had no authority to take further action therein. This court, however, in passing upon his contention, refused to declare the judgment void.

The judgment in this cause, which was entered on a judicial day, appears upon its face to be regular and without suggestion of invalidity. The relator by his own conduct consented to a trial on the two holidays,

thereby waiving any inadvertent error or mistake of the trial judge.

This being true, he is in no position to question in this court the validity of the final judgment, which is affirmed.

HADLEY, C. J., and MOUNT and ROOT, JJ., concur. FULLERTON, J., did not sit.

(48 Wash. 683)

STATE V. THOMPSON. (Supreme Court of Washington. March 17, 1908.)

1. PHYSICIANS AND SURGEONS DENTISTS PRACTICING WITHOUT LICENSE "PRACTICE OF DENTISTRY.'

Where it was shown that defendant, while maintaining a dental office, agreed to make a new mouth plate for a certain price, and that, in order to fit the plate, he extracted a tooth and took an impression for the plate, and collected a sum on account, this constituted the practice of dentistry within Ballinger's Ann. Codes & St. § 3032 (Pierce's Code, § 4475), prohibiting such practice without a license, and it was immaterial that defendant stated that he made no independent charge for extracting the tooth.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 6. For other definitions, see Words and Phrases, vol. 6, p. 5491.]

2. SAME CONSTITUTIONALITY OF STATUTE.

Ballinger's Ann. Codes & St. § 3032 (Pierce's Code, § 4475), prohibiting practice of dentistry without first obtaining a license therefor, is constitutional.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 2.]

Appeal from Superior Court, King County; George E. Morris, Judge.

E. G. Thompson was convicted of practicing dentistry without having procured a license therefor, and he appeals. Affirmed.

John R. Parker and Edwin J. Brown, for appellant. Kenneth Mackintosh, for the State.

MOUNT, J. The appellant was convicted of practicing dentistry for a fee without first having procured a license therefor. He appeals from a judgment imposing upon him a fine of $50.

He argues that the evidence was insufficient to show that he practiced dentistry or that he received a fee therefor. The evidence shows without dispute that the appellant maintained a dental office in Seattle, and agreed to make a new mouth plate for the prosecuting witness for the price of $5; that, in order to fit the plate, it was necessary to extract a tooth. Appellant extracted the tooth, and took an impression for the plate, and collected $3 on account. Subsequently the plate was made, but the prosecuting witness did not return for it. It was conceded that appellant at the time did not have a license authorizing him to practice dentistry in the state, as required by the dental act. Appellant stated to the prosecuting witness at the time the tooth was ex