Omaha daily bee., 1901-02-06
SUPREME COURT SYLLABl.

peal from Hamilton. Affirmed opinion by
/ Under the provisions Of section 2t77 Re
vised Statutes of the United states, lands
of the general government not reserved Ior
public purposes may be taken and used for
public roads
2. Evidence OF long continued use by the
public tends to show the establishment OF a
road by dedication over the public domain.
So also does the surveying, marking olJ
plating and Improvement of road by the
3. Evidence examined and found to sup
port the judgment.
No ll2SS Tatum against state. Error
from Buffalo. Affirmed, Ouinion by HOl-
comb, j. Filed January %. 1901.
/ In an application for continuance
procuring the proposed evidence. which Is
that of unknown persons or where II Is
shown that due diligence and scasonable
effort have not been made to procure such
evidence the application for a continuance
is properly overruled.
2. Where witness for the defense in a
criminal prosecution has testified to facts
inconsistent with and contradictory to
statements made by such witness prior
thereto, and regarding matters material to
the issues In the case, such inconsistent and
contradictory statements may be proven
on rebuttal for the purpose OF affecting the
credibility of such witness. the proper
foundation having first been laid.
3. Structures by counsel of a witness for
the defense held TO be of a character war
ranted by the evidence, and that such argu-
ment was not misconduct upon which
preJudicial error could be predicated.
T. Instructions TO the jury examined and
held to embody the rule of law that crcum-
stantial evidence, to justify conviction
must be OF such character as to exclude
every reasonable hypothesis save that of
the guilt of the accused
o. Evidence examined ana held to support
the verdict of the jury and the Judgment
rendered thereon.
from Pawnee. Affirmed. Opinion by llol-
comb, j. Filed January 23, 1901
l. Where q vendor sells and transfers his
property with the intent and purpose OF
hndering, delaying or defrauding his credi-
tors, and the vendee purchases such prop
erty with knowledge of the fraudulent in
tent of the vendor or knowledge. of such
facts and circumstances ~ would put a
| prudent man on inquiry which, " pursued,
would lead &c a knowledge or notice OF the
| fraudulent purpose Of the vendor, such
sale and transfer IL fraudulent and void as
to the creditors of such vendor
.. Instructions copied in the opinion held
to correctly state the law and TO have been
| properly given.
4. Evidence examined and held 20 support
the verdict of the jury ana the Judgment
No, 1880. Garter against Gibson. Error
from Cass. Affirmed. Opinion by sullivan,
T. A cestul qci trust by taking Judgment
against his trustee the pric' Of trust prop
| erty wrongfully sold, thereby rutiOes the
sale and waves his right to pursue the
q Nothing appearing to the contrary it
Will be presumed that the judgment ap-
| peaed from was within the pleadings and
No ii4C5 Sandage against state. Error
| from Fillmore. Reversed. Opinion by Hol-
| comb j. Filed January 23 l9ol
| l. Where informers, detectives or other
against the accused are. called to testify
| against him, he is entitled TO an instruction
to the jury that in wSSgh5ing Their tysti
| than In the case of witnesses who are
wholly disinterested., Prepitt against the
! People, 3 Ncb.. SU, followed.
| . Where one is charged as principal i'm n
| felony he cannot be convicted as an ac-
and vice he Snn6 whTr be- SnG cons
| v.ctcd as a principal; and where, In Grim
| inal prosecution against defendant
burglary. the Jury is instructed that the de
| fendant may be found guilty II nc advised
and ccinseled the commission OF the crime il
| ing a conviction az an accessory on an IN
formation charging him as principal In the
No iiisS Parsons against state. Error
| from Lancaster. Affirmed. opinion by Hol-
comb. j. Filed January e 1891. -
| provide in an act regulating the license and
sale OF Intoxicating liquors that the posses
| license or other permit for the sale thereof
| shall be presumptive evidence of the viola
ton of the SG, pdess rer Se
count for and eXplai1 the possession
q such provisions are not vlolative of the
constitutions provision to the effect that
| no person shall In any criminal case, be
| compelled to give evidence against himself.
= IN a prosecution under section 90. chap
ter |, Compiled Statutes: for keeping in
| tOXicatng liquors for sale in violation OF
| law the possession of such liquors by the
| accused. when established by the evidence,
| Is presumptive evidence Of guilt, unless the
accused shall satlsiactorrIy hrea account nd r"dT
that 1t was not kept for an unlawful pmr-
pose, Durfee against State 81 Neb 2ll'
4, Instructions based upon the above
mentioned section examined and held prop
erly given.
& Instructions to the Jury when taken to-
selher fix the time OF the commission Of the
offcnse at or about the time charged IN the
reoJirement that the intention 10 sell must
be a present intention within the meaning
6. In court of general jurisdiction jurs-
dictlonal facts and the regularity of the
proceedings had therein will be presumed
: of a person charged with the keeping OF
liquors unlawfully and for the purpose OF
sale, it is shown that such LIQUORS Were
seized under a search warrant ISSUED out o
the county court held that ii Is not neces
sary to introduce I'm evidence the statutory
affidavit upon which the search warrant
No. 1898 Thompson against state. Err1'
from Cherry, Reverse 10 Opinion Iaoi by sum
!. An instruction charging that IAN as
J sault on the house can hc lawfully resisted
to the extent of killing the assailant or as
: sailants only in case the assault is made
with the intent either of taking the life o
the inmate or of doing him great bodily
| harm, and that such resistance was neces
sary to prevent such crime or In case TN
inmate acting honestly had reason 70 be
lieye from the acts, facts and circumstance
I and, in fact, did believe that II was neces
, | sary to prevent the commission or suci
crime" Is erroneous.
@ A man may defend his domicile, evel
to the extent of taking life, If 1t be ac
, tually or apparently necessary to do so II
order to prevent the commission of felon,
! tb.rain Whpthpr this is the precise INN
| OF the domiciary right IL not determined
, g. The submission to the jury OF theor!
which has no basis in the evidence Is error
] A. Evidence that money or goods were Oh
tanned from man by taxing him with IN
| practice of an abominable Wickednehs az
threatening to expose hlm may pe sum
! cient to establish the crime OF robbery.
g. The occupant of dwelling may law
, | fully kill as a necessary measure OF de
| fense n person who attempts 10 break ant
enter with the intention OF eNtorting none!
| by charging him with the commission of al
, Infamous offense against nature ana threat
ening to expose him to public reprobatioi
and contempt.
: An instruction which misstates the Law
is not cured by giving another which state
! II correctly. The Jury should not be re
duired to choose between conflicting IN
structions.
) fact that defendant had two pTelim4Har,
! examination and that on the hrst he wa
held for lower grade OF crime than upo
the Cne which Is the basis of the informa
ton filed against him, Is demurlable,
No 1851. Watson against CoWlcS, Appea
from Otoe Reversed. Opinion by Sullivan
y j.. Filed January g. lgOl .,..-
I. Property used exclusively for schoo
,,,rnncas 10 from taxation for gen