Omaha daily bee., 1909-06-12
SUPREME COURT SYLLABl

Boyer against State. Error. Cheyenne
Root. ].
l. II the court, in its instructions, pur,,
ports to copy a section OF the criminal
code. the question should be correct; but
II one word only Of the statute is omitted,
and the court In other Instructions makes a
concrete application Of the law to
the facts I'm the case, and Il Is apparent
that the jury could not have been misled
by the omission referred to, the error Is
. II. in a case Of homicide. the court in
structs the jury to consider whether
defendant struck the fatal blow unlaw-
fully" the adjective fatal precludes the
that the jury are to consider merely
the blow and not Il consequences,
j. II a defendant in a homicide case
and does not state that he APP
ceased, IL is not error for the court to re-
to instruct that apprehension OF such
injury need not be well founded In fact,
to Justify one sssailed or threatened I'm
acting upou appearances, II all OF the
Facts and circumstances produced a reason
able apprehension In defendants mind Of
serious bodily injury from the deceased.
Nor will this court I'm that state on the rec
ord. ~scrutinize closely instructions submit
ting the law Of self-defense to the jury.
II Is not error to refuse an instruction
tained is. Substantially covered In an in
given by the court on its own
motion,
ANNAaAANh uAEAlANcths ANAA
In favor Of respondent. Reese, c. ]. Rose,
and Dean, j.. J.,tnot sitting.
l. Section 4 of the act OF 1877 Session
laws 1877, rage i1h while in force, con-
sidered In connection with section 4, article
V of the constitution, required the canvass
of the vote of the people upon the Ques-
ton of the adoption OF proposed amend
ments Of the constitution to be made by
the speaker Of the house Of representatives
in the presence OF a majority of each house
OF the legislature, who were required to
assemble In the hall Of the mouse of repre-
for that purpose.
? Section 4, article v OF the constitution,
requires the returns of every election for
officers Of the executive department Of
the state to be sealed up and transmitted
by the returning officers to the secretary
of state, directed to the speaker of the
house OF representatives. Section, 4, chap
ter III, compiled statutes Q9JO, requires the
stttutional amendments to be made TO the
board Of state canvassers. directed to the
secretary of state.
g. There being no specific provision for
the ~canvassing of the returns Of election
on constitutional amendments and no pro-
vision for such returns to be transmitted
to or lodged elsewhere than with the board
of state canvassers, held, II was the duty
Of said board to canvass the returns.
a. The enrolment, Authorization and
approval OF an act Of the legislature are
prima facie evidence of its due enactment"
State eN rel against Frank, 60 Nebraska
S27, SO Northwestern "a.
b. The silence OF the legislative Journals
Is not conclusive evidence Of the nonexist-
ence of a fact, which ought to be recorded
therein, regarding the enactment of a law"
g. Act Of April 5 1895, (session laws 1896
chapter iv), held TO have been legally en-
acted and mot invalidated because OF sill
ence of senate journal as to concurrency
In a formal amendment by the house"
State ex rel against City Of Wahoo, 60
Nebraska, 40, IS Northwestern 92 Said
act repealed section 4 of the act Of 1877,
supra, and placed the duty of canvassing
the vote on constitutional amendments
which act was in turn amended and re-
with the board of state ~canvassers, and
pealed by the act of 1897 session laws 1897,
chapter W.
l. The c~anvassing of an election for ex-
ecutive state officers imposed upon the
speaker of the house of representatives is a
duty especially eDjoined upon him resulting
from his office as such speaker, and is a
ministerial duty to be performed by him in
the presence of a majority OF the member
of each house. When such votes are duly
canvassed by him his duties are at an end.
g. The law does not permit the returns
of election on proposed constitutional
amendments to be removed from the office
Of the secretary of state and does not con-
fer upon the speaker Of the house any
authority or power to canvass such re-
turns.
8. A joint meeting of a majority of the
Members of each house to witness the
canvass of votes by the speaker Of the
house possesses no legislative authority and
can not create or impose duties or obli-
cations upon executive state officers where
none existed before, nor can 1t canvass
election returns or declare the result