Omaha daily bee., 1899-03-12
d. Error from Washington county

yersed. Error from Washington county.
Sullivan. J.
/. In the trial of a criminal case the court
is not ordinarily justified in assuming the
existence Of any material fact put in Issue
an assumption of any fact in an instruction
plainly processing to he a mere statement
Of the material averments of the informa-
ton.
2. In : criminal prosecution it IS revers-
ible error to instruct the jury, upon the
question Of insanity, that the burden of
during the progress of the tria-.
3. But the court in its charge may prop
cry say that WLsh lhe ~PreSunp!Sn OF san.
ny encounters opposing PROOF, the burden
IS upon the state to satisfy the jury by
evidence beyond a reasonable doubt that
the accused was sane. at the time he COM
mitted the alleged Crlminal act.
4. one suffering under a defect of reason
to such an extent that he was incapable
Of distinguishing between right and wrong
with respect to a particular act Is not
amenable 10 the laws against crime for
having committed such act.
;. And it is prejud!cially erroneous to in
form the jury in a crim!na. case, where
the defense is insanity, that want of ca
paCity on the part of the prisoner 10 under
stand the nature OF the act in question at
the time of its commission is necessary to
render him Irresponsible.
e.. Whether the court might properly per-
nit private counsel, in a criminal case, to
make an argument to the jury on behalf
of the state when such counsel did not
appear in his professional character until
the evidence was closed, Quaere.
:. It IS competent to prove the ownership
of a store building by parole evidence when
it does not appear that such building IS
real estate.
S, Where a person is charged with the com
mission of a specific crime testimony may
be received of other similar acts, commit
ted about the same time, for the purpose
only OF IS tablishing the criminal intent Of
the accused.
9. on the trial of a person informed
against for burning property with intent
to prejudice an insurance company, where
the accused refuses TO produce the policies
of insurance, secondary evidence is COmpe-
tent to show the contents of the policies,
that they were made out and delivered by
an authorized agent of the companies and
that defendant was claiming indemnity
No. g24g.-State eX rel Rroatch against
Moores. Irvine, c. Sullivan, j., dissenting.
The question of the suthcienCy of a p
ttIon or information to state a cause Of
action is, when the defect is substantial,
open for consideration throughout the pro-
ceedings, and may even be raised on d
motion for reht caring.
.. Want of legal capacity to sue refers
to a genera! legal disability. II such do not
right of action in himself goes TO the suf-
hciency of the pleading to state a cause Of
action, and is not waived by failure to
denur for want of capactty.
3. The provisions of Session Laws of 1897,
page 81, chapter 10, the so-calle1 charter OF
cities Of the metropolitan class, examined
and held to demand that in C4se of incl
iEibiEty of the person receiving the highest
number OF votes al the first general cleo
d llbN 10Y IIdAtL Aib pItSli@ll OF ltS tDulltll
should exercise the office, and not the for
No. S7g9.DWake,ey against Omaha. Pc
versed. Appeal from Douglas county.
Ryan. C..
!. Notice Of the sitting of the city council
as a board Of equalization under section p,
/ Chapter 10. page III, Sessions Laws 1879,
4 for at leBst gIX days prior thereto, Is an
Indispensable prerequisite to legal action.
. The mere fact that an owner Of adj
jacont property signs a petition for paving
q street in a prescribed mauuer does not
furnish grounds for the presumption that
the petitioner asseuts to irregular or VOID
. proceedings OF the city council IN HE per-
uoon II after the pavement shall be com
.lgted.
3. A void special assessment is not vail
dated by the mere fact tnat payments
No. lOl7G.-Mulloy against STATE. AZ
frmed. Error from Box Butte county.
]. An information will sustain a convic-
ton OF a lower ofhense involved in that
?. An information for an assault with in
tent to commit great bodily injury, fran d
under section lib of the Criminal Code,
VIII sustain a conviction for an assault ana
battery when the disclos5s, by
proper ermen shat snrh minor offenEe
was. in fact, included In the commission Of
/ the one charged.
O. section as Of the Crimina Code is not
I confined in its application 10 prosecutions
for crimes the punishment for which the
! statute had then made provision, but eA-
tends as well 10 prosecutions for onenses
! subsequently created.
4. Under said section, where the crime
charged embraces different degrees, l. e.,
Includes one or more lesser o~ffeusts the
/ acCus d. when justified by the evidence,
may be convicted of any on= OF the lesser
degrees or otcuses