Omaha daily bee., 1897-04-24
SUPREME COURT sYLLApI.

.l | fOSt.
A landlord is not upon the abandonment
of the demlsed premises by the tenant II
violation of his contract required to relet
for the protection of the latter, but may al
| his election suffer the premises to remain
| vacant, and recover his rent for the re-
| mainder OF the term by means OF an actor
| on the lease.
@ Allen against Saunders, Neb., 1856
| distinguished.
National Bank, Battle Creek, Mich.
against Miller. Error from York county
| Reversed. Opinion by Chief Justice Post
Defendants held not estopped by a former
Judgment pleaded to allege the failure OF
| consideration for the notes sued on.
Where to an action upon promissory
note by an indorsee thereof the defense in.
terposed is fraud or illegality in the incep-
| tion OF the contract the burden is upon tn
plaintim to prove that he is a bona fdc
holder for value, but where the only defense
! is the failure OF consideration or the like,
the burden is upon the defendant to over-
come the presumption that the note was
| transferred before due for value In the
usual course of business. Violet against
Rose, 80 Neb., 66o; Kelman against Calhoun,
Shaw Co. against Robinson & Stokes
Co. Error from Douglas county. Motion
| Justice Post
When n case in it's nature appeallble is
| brought into this court for review, the filinty
| of petition in error will be construed as
| an abandonment of an attempted appeal
| from the same Judgment or decree.
z. An objection on the ground that the
unsupported by the evidence will not. on
petition in error in this court be consd-
| cred unless presented to the district court
| BY means of a motion for new trial and
a ruling had thereon.
Norfolk State Bank against Schwenlt. APP
peal from Madison county. Reversed and
remanded Opinion by Chief Justice Post
. Equity will require creditor having a
| lien upon two funds, upon one of which
alone a creditor has IA subordinate lien to
| first exhaust the fund to which he ,llone is
| entitled
| rhn
| statute exempting homestcads to heads If
| families in its popular sense, and denotes II
parcel of land within the limits of a city
/ or village as surveyed and plated.
Davis against State. Error from Lincas-
ter county. Affirmed. Opinion by Commits
| sioner Ragan.
Malice is an ESSENTIAL element in the crime
of murder both at common law and under
our statutes.
ill-will against a person; but in its legal
sense 1t means wrongful act done inscn-
tionally without just cause or excuse.
Housh against State 43 Neb., 1863, followed.
). The plaintiff in error was indicted for
the murder of one Hambel, passenger on
railway train, by displacing the fixtures
of the railway track, thereby causing the
wreck of the train and the instant killing
of Hambell. Held: % Whether the pris-
way track acted maliciously was n question
OF fact for the jury to be determined from
all the circumstances and facts in evidence
in the case; (2) that the prisoners state
ments as to the motives which induced
him to displace the fixtures of the railway
track while competent evidence were not
conclusive in his favor that he did not act
maliciously; C9 that III order for the kill
ing of Hambell to be murder in the second
degree 1t was not essential that the evil
dence should show that the prisoner was
possessed of a specific intent to either
Kill or injure Hambell or any other person
upon the train.
A. When the fact of unlawful killing is
proved and no evidence tends to show OK
press malice on the one hand or any justi-
ticatiOn. mitigation excuse the th,ar
the law implies malice and the offense is
murder in the second degree.
o. The indictment against the prisoner
was filed at the September, 1894, term of
the court; There was February, 1895,
srm sa tarm May lS5 term IN and September
was tried and convicted. He was put
on trial at the February, 1885, term ana The
jury after hearing the evidence failed to
agree upon a verdict and was discharged.
Held: % Constituting sections 800 and @?l
of the Criminal Code that the prisoner was
not entitled to be discharged because not
brought to trial either before the end of
the second or the third term of court in
which his case was pending held after the
indictment against him was found.
g. BY the constitution of the state the
legislature Is invested with plenary legiSla-
tive power and the defining of crimes and
prescribing punishment therefor is q legls-
lative function.
T. Every legislative act comes before this
court surrounded with presumption of con-
sttutionality; and this presumption con
tinues until the act under review clearly
ipPSdiS " CoillidNeHc SOIile provision
the constitution.
s. Section 90 OF the Criminal Code does not
violate any provision of the constitution
Said section is not void for uncertainty
because the crimes of murder in the first
degree murder in the second degree and
of said section.
g. A criminal statute is not void for un-
certainty which prescribes punishment
for doing certain act the same punish
mcnt which is prescribed for doing another
named act when the same criminal code
defines the latter act and prescribes its
punishment.
10. While 1t is proper in a criminal case
in defining crime in an instruction to use
such crime. yet If the import of the lam
guage used in the instruction is the same
as the statute, an instruction will not be
ployed by the court Is different from the
languagSes Ss of Of the statute. statute, Long against
peat in every instruction the degree of
proof REQUIRED when the jury has been prop
out it's whole case beyond a reasonable
doubt. Carleton against the State, 43 Neb.,
IL. An instruction should be examined as
a, whole; all that the instruction contains
t9 op 5
1t prejudiced by it; to single out a
phrase, a word or sentence from an in
phrase separately from the other parts of
the instruction is not fair method of crit |
49, In an instruction the trial court used |
this language. And If the jury finds from |
the evidence that all the discriminating cir |
cumstances upon which the prosecution re- |
lies for a conviction will as well apply to |
some other person or persons as to the de- |
fendant, or If such facts and circumstances |
are reconclable with any reasonable the |
ory or hypothesis other than the guilt of
the defendant, or If such facts and circum-
stances, together with the direct evidence
offered in this case do not satisfy the
minds of the jury beyond any reasonable
doubt of the guilt of the defendant. then
you should by your verdict acqut him
Held, applying the rule just above stated
that the use by the court of the. expression
circumstances" If error, was
Sfa1st he State TO- &c Re5 s Maz ds
tinguished.
a. In a county OF 10000 Inhabitants or
more where there Is pending for trial In
the district court felony case the judge |
of the said court. II satisfied that a jury
be obtained from the regular panel
to try such case, may direct the draw
ing and summoning of a special panel from
Section 66sG, Code of Civil Procedure.
Is. And II in the selection of "a jury the
regular panel be exhausted and the jury
selected be discharged before reaching a
verdict the judge of the district court may
direct the drawing and summoning of a
second special panel from which to select
a jury to try said case:
10. And in selecting jury from such sec
Ond special panel the accused, unless he
demands that the exhausted regular panel
shall be recalled and re-eXamined, cannot
be heard TO complain that the court erred,
In not causing that to be done.
II, The wreck, which il was alleged the
L. Ns..a