Omaha daily bee., 1897-04-24

| I
the entry was correct and the party movinf
TO strike out himself introduced in evil
dcnce the entry made IN the book by the
-. The order In which party shall in
! troduce his proof is TO great extent dis
tion in that respect Will not be cause fol-
! reversal when no abuse OF discretion is
4 Pei. followed
%. There can never properly he more
Ian one issue before the court in a Grim
maj case at one time; and so long as the
plea of not guilty remains on the record
,,r9cr plea in in bar Is mprSpGr and the state is
9F os s%Gg S% a%9 the ali ats
Sne STATE 6 Nshr l2O' korth against thu
2S IL q prisoner, otter a, plea Of not
b S@SFs sas aos whcR RnS SayG EG';SE PSa
or come Go his knowledge since the entry
Of Of his plea Of not guilty, and which focttss
is the duty of the court 10 permit the pris-
ooner to Withdraw his plea OF rot guilty and
guilty and without withdraw Ing or request,
T NO sH'h wbch Rf} a %ns pS or
signed nor sworn to by. the prisoner. Held.
T9st s Ss sGeh PGo in ands1 Ss 0s obSS6n pySS e,
demur OF. reply to It, and that the court
was justified in ,disrcgar1lng i and on its
1t 0stS seems sSs tSat " S pioa '5f Of fs Former
jeopardy' should set out the record. that
conviction and the statements OF fact, viz:
the the, IDENTITY of the rerson asqnitted or con-
| quilted or convicted.
g: The prisoner was put on trial before
q, jury and after part of the evidence for
came sick, was examined by a commission
appointed by the court and found and ad-
discharged the jury without prejudice to
the future prosecution of the prisoner and
| entered such facts. findings ara orders upon
| MS record. On being brought to trial the
second second time the prisoner by an INVALID plea
by reason Of these facts. Held. G6 THAT
the invalid plea In bar would he treated
as g motion to be discharged grounded
| on the actions and ruling of the court in
the case as disclosed by the record; (2) that
the insanity Of n Juror, was an accident
| jury within the meaning of section 4S5 OF
| the Code of Criminal Procedure; C3) that
| was fully authorized by said section of the
| code and the record disclosed aflirma lively
that the prisoner had not been in former
80. The corpus dclecti is the foundation of
every criminal prosecution, and the confess
sion Of an accused that he committed the
crime is not alone sufficient evidence to sus-
tain his conviction thereof. Ashford against
81. The confessions of prisoner that he
committed the crime with which he is ne
! cuscd-if freely and voluntarily made-are
competent evidence to be considered by the
jury in connection with all other facts and
circumstances in evidence in the case in
determining "ntlntT lne uECuSCu ulu IN
fact commit the crime with which he is
charged.
planning of the refusal Of the district court
to give an instruction not only to show
that he was probably prejudced by such
refusal of the court, but that the entire in
struction is correct as a proposition of law
and applicable TO the facts in evidence in
the case.
cause the court refused to give instruc- |
ton asked when the substance of such IN |
sysG BUN aFanst soe G5heF 4 Neb @
"a. The charge of the court on the subject |
of reasonable doubt set out in the opinion |
and approved.
80. A defendant accused of a crime is pre-
sumcd to be innocent and such presumption |
until the state has established the guilt of
the defendant beyond reasonable doubt. |
But it is not the law that a jury is boand
to acquit an accused simply because one
of the jurymen entortains a reasonable
doubt of his guilt. In such a case the jury
follow. that it then becomes, the duty of
the other jurymen to surrender their CON
victions and acquit.
SO. 1t is not prejudicial error for a court
in It's charge to say to the jury that the
evidence before them is both direct and
circumstantial
81 The court in an instruction stated to
the jury that there had been offered in the
case both direct and circumstantial evi.
dencc; he then defined these two kinds of
evidence and stated that the clrcumstan:iail
evidence which had been received was legal
ana competent anu tneIl sdiu. Anu IL II
is of such a character as to exclude every
reasonable theory, supposition or hypoth-
esis other than that of the .defenl3ats
guilt then and in that event 1t should be
evidence" e,id s Held: d That the last clause
(2) but when considered in connection with
the remainder of the instruction that 1t
Wh9nt PrSgdee 90 that it
to give the same weight to circumstan;ial
evidence as direct evidence.
of the weight of evidence and the cred-
blity of witnesses set out in the opinion
and held not ;n
was derailed at trestle and "A passenger
thereon killed. The defendant was indicted
the death of the passenger by unscrewing |
the nuts from the fish plate bolts with |
monkey wrench introduced in evidence and |
on the treste with a claw bar, introduced |
in evidence, just prior to the occurrence
of the state tended to show that the de-
fendant displaced the fixtures as charged. |
witness testified test for the dc defendant that
wreck occurred on the afternoon of that
day and that he left the locality about
one nor heard any noise about the
trestle.
the defendant that 1t was impossible for a
man with the monkey wrench in evidence
to unscrew the nuts on the fish plate bolts
the state in rebutta to prove by "A non
expert that with the monkey wrench in
evidence he unscrewed eight nuts from as
many fish plate bolts an n portion of the
said railway track in all respects like the
track on the trestle with the exception
that where the witness experimental the
track was on the earth: and with the claw
bar in evidence he also removed all the
did all this work in twenty-one
Held G) That this evil
dence of the state was rebuttal testl-
mony; (2) that the conditions of the track
where the experiment was made were sub
stantially the same the conditions exist
ing on the trestle where the alleged dis
placement of the fixtures was made and
that therefore the evidence was competent;
CD that the difference in conditions existing |
between the track where the experiment
was made and the track where the dis |
placement occurred did not render the evil
lence incompetent, but was proper for con-
sideration by the jury in determining the
weight TO be given to the evidence of the
experiment
49, person convicted of felony and
by counsel cannot as matter
Of right insist on being present in court | {
either al the time of the filing the argu- |
ment or upon the ruling upon his motion
for new trial. Miller, alias. etc, against |
The State, 20 Ncb., 437, followed.
Al. The denial of motion for new trial
upon the ground of newly discovered evil 1
hence will not be held erroneous when IL | I
appears that the newly discovered evidence | !
IS cumulative and would not probably {
,hange the result already reached. (