Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1912-02-24

ling aside sneh verdict. /
II Is within the discretion OF the dis
trfct fcourt to reasonably limit the time
allowed counsel In which 10 argue MS
cause to the jury. and unless IL appears
that there has been an abuse OF such
discretion. such a limitation does not al
ford sufficient reason for reversing the
judgment OF that court
1881. Erdman against state. Error
from Douglas. Reversed and reInanded.
Reese, c, J. Barnes and Fa~eett, u,
dissent
!, In criminal prosecution, based upon
the explosive quality Of substance when
II was alleged was placed upon porch
Of an unoccupied dwelling house for the
purpose Of committing murder. the Ut
most care should be taken In preserNlaS
the substance and its Identity In order
that no mistake be made and all uneer-
talnty removed.
:. The paper wrapped around the sub
stance charged 10 have leci. dynamite
bore the brand OF we'll known manJ-
facturer of dynamite. II wss shown Tat
at the stone quarrics near the city OF
Louisville the same brand Ct dynssa.se
was used and that the depository IN which
II was kept was not secured By locs and
key. The accused was seen In LouisNltie
a few days before the perpetratioa OF tho
alleged crime. hut II was not shown thar
he knew where the dynamite was do
posted. nor that he was seen near there,
nor that any Of the dynamite there stored
had been taken away. Held. too remote
and Of no prohatlve force.
J. A trunk dealer was called ~ wilt
ness who was permitted to testify that
prior to the day on which the ALLEGED
crime was committed he had two suit
cases In stock similar 10 the one offered
in evidence as the one placed upon the
porch of the dwelling house, and some
time thereafter there was but one, the
other having been sold 70 far as he knew.
There was no proof that plaintiff In error
had been TO the store nor that he know
OF the existence Of the two suit cases, nor
that the supposed missing one had been
sold or stolen. Tie objection BY the de-
PENDANT TO this testimony should have
been sustained. Tic evidence was imTna-
terial and irrelevant and prejndieial 10
| the accused.
4 The state called witness in rebuttsl,
She had previously made written
| statement TO detectives representing the
state as TO the time OF day when Ger
ain picture was taken. but which she
stated upon the witness stand she had.
upon reflection, concluded was trrone-
GUS, Thereupon the county attorney pro-
ceeded to read TO her. In the presence
of the jury, her statement taken ~ the
detectives. Held. under the circumstances
set out IN the opinion. erroneous.
| s. A witness who was called by the de-
| Tense stated that at the time Of the COM
mission Of the alleged offense he was
reporter for a local newspaper. was
present when the contents Of the suit
case were examined by the police, and
/ made certain notes OF the condiuon oi
| said contents. His testimony was asked
| upon a material question, when he re-
sponded that the facts had been cor.
| rectly reported and the report published
| In the paper as furnished that after the
publication of his report he examined
the article IN the paper and found Y cor.
aside or destroyed but the facts as 70
| The condition OF the contents OF the quit
case had left his mind He was asked 70
refresh. hts memory BY = reverence 70
state was sustained the court holdins
/ that he could not refresh his memory
only BY reference to his original notes
iSssi. shank against Lee. Appeal from
Merrick county. Affirmed. sedswlck. J.
i, A resident OF the village In which
1.-THE application for saloon license 10
made, who purchased and paid for prop
srty In the village. which he has oecu-
the application, Ia q freeholder, although
he received no deed TO the property until
the time, or shortly before. he signed the
4 il several witnesses testify in sen.
sral way that the applicant y q man o.
good moral character. and there is no
evidence 10 the contrary, the finding upon
THAT point in favor 81 the applicant based
upon such evidence will not be reversed
upon appeal.
violated the statute regulating the sale
of Intoxicating liquors within the year
prior TO his application for license.
i7S62 Kemplin against state. Error
from Garden county. Affirmed Reese,
lie. ].
il /. Where in a criminal prosecution the
case was called for trial In the district
court. the names Of three jurors we're
called and the jurors took their places
In the jury box, but before they were
sworn or Intercepted as 20 theh quail
fications TO serve az jurors, the court,
over the objections OF the accused, per-
mitted the name OF an additional witness
70 be endorsed upon the Information, but
no application was made for postpone
ment OF the trial, and no pretudiee was
shown held, prejudice VIII not be pre-
sumed.
d In a prosecution for burglary by
breaking and entering n dwelling house,
lit was shown that the doors OF the house
were closed In the morning when the
family residing there left for the day.
and that upon their return In the evening
the house had been entered and certain
articles stolen therefrom: held. there was
sufficient proof OF malice and OF break
The evidence ia examined and held
sufficient to sustain the verdict OF
f65is. shanahan against. Burlington a
Quincy Railroad company. Appeal from
Kearney. Reversed and remanded. Reese
iC. ].
/. Plaintiffs intestate took passage on
a through freight thrain from a point In
Iowa to q point In this state. accompany
ing live stock and household goods,
travelling In the car as q caretaker. When
state, the car was detached and placed
on proper side track In the track yards
TO be taken to Its destination by local
train the next morning, the through
freight not stopping at the point o.
destination. During the Intervening night
deceased sought his car. and there was
some evidence tending TO show that he
found II and afterward left II and was
found in fatally injured condition by the
side of the main fne track, a considerable
, distance from his car. At about the houI
Of Q o'clock q. m, fast passenger tralr
! came in from the west, running at the
| rate of twenty-five 10 thirty-five miles
, an hour. The fireman on the engine saw
an object about 40 feet ahead Of th'
train, outside of the track and on his side
| thereof but was unable to detect what 4
, WAS. As the engine passed IL IL assumed
the shape and form OF human being
but lying outside and free from the track
After the train had passed on 10 th'
. station he informed defendants employee
. of what he had seen, and they went q
the spot and found deceased injured and
lying outside Of, but near the track. This
I defendant asked the court 10 instruct til,
. Jury, in substance. that II they found tina
. deceased reached his car and afterwafs
left 1t and wandered upon the tracks ans
placed himself on the ground near enough
: TO the main line track to be injured BY {
passing train he would be a trespassei
, and the enginemen were not bound to ex
pect his presence there nor look out will
] view to discover him. and the defcndan
would not be liable for not stopping tn,
/ train before passing him. Held. erro
to refuse such instruction.
l, Record examined and held to show
} no reversible errors Of law.
! z. The evidence examined and set on
In the opinion held sufficient TO sustain
4 OF the trial court
17ls3 State ex rel Barton against r. ans
NJ. Insurance company. Appeal from
Lancaster county. Affirmed. Ietton. J