Omaha daily bee., 1909-05-08

| reversed.
1856. shumway against state. Error. from
Gage. on motion Tor rchearinE, Rose. j..
being disqualified. and the other members
! ~ the court being equally divided In oplr-
ion, the motion Is overruled. Former opin-
ion and syllabus modified In re-impaneiling
OF jury. Letton. J.
l. A paper not properly q part Of the
record Of the case nor made 40 by statute
does not become a part ~ the record by
being attached to or made a part OF the
> In order to review the proceedings 81
the district court upon the impanelling OF
a jury all matters with respect thereto
which II II desired 20 present TO the SUI
preme court should he preserved by bill az
exceptions.
3 The portion Of the former opinion and
syllabus in this case which treats of the
errors assigned with reference TO the inn
panelling OF the jury vacated and set aside,
County. Appeal from sarly. Reversed
and remanded. Good c.; Root. J. not
1855. Buerstotts against suerstetts. Ap-
peal from johnson. Reversed and re-
manded. Epperson, G. Division No. L
l. Where a judgment OF the lower court,
and the disposition OF the case in this
court are not pretudicial to the interests
or an appellant, this court will not con-
slider an assignment OF error that the lower
court had no jurisdiction over the person
of the appellant.
. The provisions OF section 70 81 article
vi Of the constitution, barring the county
court from jurisdiction Of actions In which
title to real estate Is sought to he recov-
cred. or may be drawn in question, does
not apply TO an important litigable question
OF which that court has exclusive original
jurisdiction.
3 In the construction n a will. the
court Will presume that the testator In
tended the will as a consistent whole, aud
will consider II In Its entirety, its several
parts with reference to each other. to as
certain, II possible, the meaning which
the %testator attached to any part thereof.
T. An executor, as a trustee, cannot hold
1.-THE legal title TO land devised for the use
! of the hanRfintarx nNlaga tha faataNnr haa
by his will expressly or implicitly created
in him a trust estate other and different
from that of executor. or unless a trust Is
made necessary that the intentions OF the
~testator may be executed.
lbISs, Fouse against state. Error, Doug
i aris AIilrmsd; penalty chSnsed to Inn,
sitting.
l. In q prosecution for robbery It was
proper for the state TO prove that I'M the
afternoon of the day that deceased was
killed and robbed anG preceding the time
ne lett his abode for the city where he
was Killed he had considerable money in
his possession, even though no part thereof
is traced into the possession Of defendant.
z An answer responsive to q question
should not be stricken from the record.
B. II is within the discretion Of the trial
court to permit a witness used by the
all witnesses were ordered excluded from
obeyed the Fule.
e. The court will not review an order
m9de by a district court refusing n de-
PENDANT permission to file an amendment
TO his motion for a new trial where such
apnllcation is made more than three DAYS
after the return Of verdict.
"a statement freely and voluntarily
made by a defendant, not induced by
threats or promises, wherein he admits that
he had participated in the main facts es-
sentiai to constitute the crime for which
he Is being tried, may properly be referred
TO by the court as a confession"
g. II the evidence does not tend to prove
mat defendant at the time he committed
such a degree as to interfere with his
Judgment and understanding and defendant
testified clearly and plainly to the trans
action and claimed that he acted in self
defense, this court will not examine an in
struction whereby the trial court submitted
10 me Jury the defense OF intoXication.
4 The court may permit a police officer
to testify concerning statements made to
him by defendant even though such de-
In the custody of said officer where 1t IL
apparent that the statement was voluntary
and not induced by threats or promises.
=. II Is entirely within the discretion OF
the trial court to order. or refuse to permit
the jury to inspect the scene Of the alleged
crime.
1899. Fee against Chicago. Burlington 8
Quincy Railroad company. Appeal fr~
Harlan, Affirmed. Good, c. =
No. l.
J. In an action against a
panY for damages for killIrr
track at a point where tn
right-of-way to he fencet
which permits plaintiff II, y
ing the fence or gates inst .,
vent the horses from going up h'
and That the horses were killed ha,
ants train on its track is not II agI
when the undisputed evidence sho ho,ta
the horses went upon the railwas I
at the defective or Insufficient gate.
- 2. An instruction which directs a iurv
TO find for the defendant II a certain state
OF Facts Is proved Is not equivalent TO a
direction to find for the plaintiff II any Of
the facts therein enumerated are not
proved.
1b4l4. Davis against Berland. Appeal
from Jefferson. Reversed. Duffie. c.. Di-
|, / In an actitn against the vendors Of
Intoxicating liquors to recover damage
suffered from the acts Of an intoxicated
person, II Is sufficient under the provisions
OF section n6s, Cobbey's Statutes. 1907, 10
plead and prove that the defendants sold
or gave intoxicating liquors to the intoxi-
Gated person from whose act the DAMAGE
arose, on the day or about the time the
injuries to the plaintiff were received. In
such cases the statute by it's terms sup
plies allegations and proofs required in
other actions of damages.
:, In an action for loss of means OF sup
] port caused by the death of q person, II IL
error for the court to instruct the Jury
that such loss began upon the death Of the
deceased person and would continue as to
one Of the defendants. until such time
as ne would have lived had he been per-
! mitted to reach the end Of his natural life,
+ as indicated by the tables of expectancy.
; winch have been introduced and received
So ~, N'''f anu toON1tdlIN IH
this tue when there is testimony in the
! case tending to show a serious in
jury suffered by the deceased, previous TO
, any sale of liquors made by the defend
I ants, and which would naturally tend to
5 shorten his life, or oause his insanity.
1915. Jesse against Brown. Appeal from
> Jefferson. Good. c. Division No. /.
Evidence examined and discussed in
: the opinion, held sufficient to sustain the
judgment OF the district court.
] Why the Visit Was Brief.
He was a bright little boy and his
mother had taken him on a visit.
> 'Ostend,' said the hostess before sup
per, do you have grace at your house,
4 Yes, ma'am," responded the little boy
. without hesitation.
His mother looked up in astonishment.
why, Ostend, aren't you mistaken,
! dear?'
mo, indeed, ma. Didn't hear a gem
n tleman with a bin tell pa the other day
that he had thirty days grace?'
And then, amid general confusion. Os-
2 tend was hurried hOmc.-Chicago News.
4 After that, the DeIuEe.
5 The book agent was trying TO get Mrs.
4 FuTstyere to examine his volume. "First