Omaha daily bee., 1905-10-23
SUPREME COURT SYLLABl
1883 hurley against State. Error, Han

1883. Turley against State Error, Hail. |
Affirmed. Sedgwick. j.
IL, The objection that juror is disqual--
flied because OF having been convicted of
felony may be waived. A party who does
not inquire in regard to the matter on the |
voir dire examination of the Juror. nor |
object to the juror on that ground until |
after the trial, will be held to have waived !
the objection.
2. Upon trial of an information for MUIR |
der and plea of self-defense, it is compe-
tent to show that the deceased was at the
time in the lawful and peaceable possession |
of the premises where the homicide &C.
Cured; and for that purpose it is not
error to allow, under proper instructions
from the court, the Introduction in evidence
of written lease conveying to the de- |
ceased the right of possession.
3. Matters of common observation and
matters upon which jurymen are as capable
OF FORMING an opinion as are physicians and
surgeons are not matters for expert medical
testimony. But it is not necessarily re- |
versible error to allow witness to testify |
to truism with which all intelligent men
are presumed TO be acquainted. nor is II |
In all cases reversible error to allow a wit |
ness over objection TO testify to a propo-
sltion OF law or fact of science nature
which is a matter of common knowledge.
Z. 1t is not error TO instruct the jury in
trial for murder that when comnetent
evidence has been introduced tending 10
prove that the defendant acted In self-de-
Tense It is incumbent upon the state to
prove to you beyond a reasonable doubt
that he did not so act"
8. One who Ia violently assaulted may use
Sutn liltdIlS IuT SelI-pTOtectlOn from the e.
sault as would appear to an ordinarily rea-
sonable and prudent man similarly situated
to be necessary under the circumstances
An instruction which tells the Jury that If
under such circumstances he uses Sound
reason in determining what is necessary
for self protection IL Is all that s required
OF him is inaccurate. but is not erroneous,
requiring reversal of the Judgment u II is
coupled with another instruction which tells
the Jury that there must be an acquitted II
under such circumstances the defendant
hRd reasonable ground to believe and did
believe that there design to take his
| life or to do him grave bodily harm
g. In trial for murder with evidence Of
self-defense, when II appears that the ac-
| violating the law at the time of the homi-
eide. and there is evidence tending to show
| that the killing was done in iustifable self
protection from a vicious and DANGEROUS
| assault by the deceased. it is error 70 in
struct the, jury that when a man without
| fault. I'm the lawful pursuit of his duties is
attacked" he may defend himself AGAINST
! such attack trespasser NAV defend
| himself against an unlawful and DANGEROUS
assault. But the whole charge upon this
| subject must be construed together, and II
In one instruction the jury, without such
! from the nature of the attack there is rea-
sonable ground to believe that there is q
design to take his life or to do him great
bodily harm. and the party attacked does
so believe, then the shooting of the assail-
ant under such circumstances Will be ex-
error to tell the jury in another instruction
that the defendant will under such circum-
|
without fault, and in the lawful pursuit OF
his duties.
I. Although It appears that the deceased
was at the time of the homicide guilty of a
technical assault upon the accused, II would
not be lawful to use more force than neces-
sary for self-protection from that assault.
And II the jury should find that the accused
was a trespasser at the time Il would be
his duty TO retire from his assailant If by
so doing he could avoid all danger from the
assault. To kill the assaiant under such
circumstances would not be jnstifsble. a
(requre the defen6ant to flee from his assail.
ant" was properly refused as-misleading
g. II Is not error to refuse a new trial or
the proposed evidence might with reason
able DILIGENCE have been produced upon thu
trial or IS cumulative.
, 1878 Riff AGAINST Garvey Error from
Cedar Affirmed. Letton, c. Division No.
One who consents 70 the uncovssring o
a portion OF the roof uDOn a building be
LONGING to him TO allow one of its walls
which is party wall to be built hiehe
cannot recover from his co-owner for dam
ages from leakage unless he proves tina
the injury resulted from the negligence O
the defendant Urlau against Ruhe. Ap
peal from DOUGLAS. Motion for rehearln
overruled. Per curtain.
1890 First State hank OF overton agains
AHrmed. JACKSON. G. Division ion No. 3 "'''
Z ! Where party gives a reason for hi
decision and conduct touching anythln
0 after LITIGATION has begun from changin
q his ground and putting his conduct on an
1884 Chicago. BuTlington q Quincy Raj
s way company against Mitchell ErrC
n from Richardson. Affirmed. Oldham,
= Division No. !.
: /. Petition examined and held to dennlteI
I stote good cause OF action.
. ?. Evidence examined and held sufticipi
: to sunnort the iudsment of the trial cour
. 3. Where an injury to the crOns and lant
i Of one is caused by the negligent constru
: tion Of a railway embankment which a
rested and held upon said lands the foe
waters Of a natural stream. such party
) cause OF action accrues at the date OF n
III injury and not at the date Of the negliee'
10 construction Of the Improvement. Chicag
10 Burlington & Quincy Railway compa,
~ AGAINST Oliver Emmert, 50 Neb. 237 fC
lowed and approved.
T. Instructions examined and apnroved
3. Action OF the trial court In admissi,
Z cial
he 1897. Arnout against Chadwick. Appes
en- Douglas. Reversed and Temanded. JAG
~ son, g. Albert, c., not sitting. Divisit
n No. 2
Of / To Justify a trial court in settii
lg aside decree rendered at a former ter
~ I on the ground OF fraud II is not necessa
that actual fraud should be found. II
II sufficient II facts and circumstances a
ng proven from which constructive fraud c.
be inferred II bv reason OF such facts Al
circumstances the Dartv seeking to ave
a. | the decree was induced 10 make no a
pearance In the cause In which the deer
was rendered.
2. Evidence examined and held suficie
TO justify the district court In vacating
q. former decree OF that court,
k 1899. Baker against Mcdonald. Err,
~ Dodge Reversed and remanded. Duff
ne c. Division No. 2
~ l. The general rule Is that when I
en terms of sale Of personal property ha
Ne been agreed on and the bargain Is struC
and evarVfhfua the seller has % 10 with [