before there could be deliberation and the premeditation
growing out of the killing the slayer should have had time
for his passions to cool and to deliberate in his rational
moments over his trouble before he could be convicted of
murder in the first degree if he subsequently slew the
party with whom he had the trouble; and if you find from
the evidence beyond a reasonable doubt that prior to the
difficulty that took place between the defendant and [the]
deceased at the door of the commissary the deceased and
the defendant had some difficulty, then before the jury
could find any deliberation or premeditation they must
prove some act of hostility either committed or threat-
ened by the defendant toward the deceased, before they
could find that the act committed by which the deceased
lost his life was committed with deliberation and premedi-
tation," held not error to refuse. (Record, p. 20.) Idem..166, 175
S Green v. Commonwealth, 83 Pa. St., 75.
11. An instruction as to the law of self-defense held not preju-
dicial and erroneous. Coil v. State.....
12. An instruction that one who shoots through mere coward-
ice will not be justified on the ground of self-defense held
proper. Idem.
Husband and Wife. See DIVORCE AND ALIMONY. MARRIAGE.
PARENT AND CHILD.
1. The common law disability of a married woman to con-
tract, is in force in this state except as abrogated by stat-
ute. Citizens State Bank of Wood River v. Smout.
2. A married woman may make contracts only in reference
to her separate property, trade or business or upon the
faith or credit thereof and with the intent to charge her
separate estate. Idem.
3. Where, in an action on a married woman's note she pleads
coverture, the burden is on the plaintiff to show that it
was given with reference to her separate property and
with intent to bind it. Idem.
4. The release of a homestead right is a sufficient considera-
tion to support a contract made between husband and wife
for an equal division of the money derived from its sale.
Racek v. First Nat. Bank..............
.... 669
5. A contract of suretyship is binding on a married woman
when made on the faith and credit of her separate estate.
McKell v. Merchants Nat. Bank.......
6. The liability of a married woman on a contract made
within the scope of her statutory capacity, is to be de-
Husband and Wife-concluded.
termined by the rules applicable to persons of full capac-
ity. Idem.
7. In an action against a married woman, where she pledged
her separate estate, an answer averring that she had no
property in her own right states a good defense. Idem.
Illegitimate Children. See BASTARDS.
Impeachment. See NEW TRIAL. WITNESSES.
In Custodia Legis. See EXECUTION, 11.
Indemnity. See PLEDGES. PRINCIPAL AND SURETY.
A note given for a sublease of lands leased from Indians,
can not be enforced by a bona-fide holder under the United
States statute making any contract with respect to such
lands absolutely void. Larson v. First Nat. Bank of Pender.. 303
See BILLS AND NOTES.
Indictment and Information. See ASSAULT. ASSAULT AND BAT-
TERY. HOMICIDE. RAPE.
1. All criminal prosecutions must be carried on in the name
of the state. Worthen v. Johnson County...
2. The state is required to furnish the defendant with only
one copy of the information. Bush v. State......
3. Where no information or indictment is filed during the
term at which the accused is held to answer, he is en-
titled to be discharged. Cerny v. State
4. The rule is that only such exceptions and provisions of a
statute are required to be negatived in an information as
are part of the description of the offense. Holt v. State.... 134
Verification.
5. An information charging murder may be verified by the
prosecuting attorney of the proper county. Bush v. State.. 128
6. The deputy clerk of the court can swear the county attor-
ney to an information. Nightingale v. State...
7. On a prosecution for felony, the accused waives all de-
fects which may be objected to by a motion to quash or a
plea in abatement, when he demurs or pleads. Reinochl
v. State
See DIVORCE AND ALIMONY.
PARENT AND CHILD.
An emancipated minor may acquire a residence of his own.
Information. See INDICTMENT AND INFORMATION.
Injunction. See COURTS. HIGHWAYS. TAXATION, 3-5.
1. The transfer of stock of a corporation may be enjoined
at the suit of the owner when a bank of another state
has wrongfully received it in pledge and is attempting to
have it transferred to it. Reynolds v. Touzalin Improvement
Co........
2. The extension of a franchise, though made in the form of
an ordinance, held not free from the interposition of the
courts by injunction where contrary to the city's statutory
charter. Poppleton v. Moores.....
3. In determining whether a writ is a temporary order of
injunction or a temporary restraining order, the form of
the order is the test. State v. Baker.......
4. Writ set out and construed to be a temporary order of in-
junction. Idem.
5. Temporary order of injunction reviewed and held not to
dispossess the defendant city of the right to regulate and
control its streets and alleys, and not to be void for that
reason. Idem.
6. The chief feature of a temporary restraining order which
distinguishes it from a temporary order of injunction is
that the former contemplates a further hearing upon no-
tice upon an application for the latter. Idem.
1. Instruction as to alibi held not erroneous. Nightingale v.
State ....
2. An instruction which without warrant assumes the possi-
ble existence of a material fact, is erroneous. Van Nortwick
v. Holbine
3. Instructions that are conflicting or misleading are errone-
ous. Faulkner v. Gilbert.......
4. Instructions must be construed together. Metcalf v. Bock-
5. It is not error to refuse cumulative instructions. Arga-
bright v. State....
6. Where the plaintiff in error could in no view of the case
recover on the issue covered by the instruction of which
he complains, the error, if any, is without prejudice.
Dodds v. McCormick Harvesting Machine Co......
7. The use of the words "as in sound reason" in an instruc-
tion on the law of self-defense, held not prejudicially erro-
neous. Coil v. State......
8. In an instruction as to the consideration of evidence by the
jury, the use of the word "impartial" does not render the
instructions erroneous. Savary v. State..
9. Where instructions have been held proper on review, on a
second review they will be held the law of the case. Arga-
bright v. State......
See APPEAL AND ERROR, 43.
Negligence. Burden of Proof.
10. An instruction that the burden of proof of contributory
negligence is on the defendant unless it appears from
plaintiff's own testimony, held to refer to all testimony pro-
duced on plaintiff's behalf. New Omaha Thomson-Houston
Electric Light Co. r. Baldwin.....
11. Parties who invite oral instructions do so with the proba-
bility of the defect, and when such instructions are given,
and, taken as a whole, they fairly present the issues, the
court will not examine the charge for fly specks on the
phrases and sentences. Chicago, R. I. & P. R. Co. v. An-
dreesen
12. Instruction defining a reasonable doubt held not erroneous.
Nightingale v. State....
13. An instruction in the following language: "You are not at
liberty to disbelieve as jurors if from the evidence you be-
lieve as men; your oath imposes upon you no obligation
to doubt where no doubt would exist if no oath had been
administered," is not erroneous. Savary v. State.......... 166
Repetitions.
14. It is not error to refuse instructions requested on points
substantially covered and included in other instructions.
Coil v. State....
15. A request for an instruction not based on the evidence and
not pertinent to the issue, is properly refused. Omaha Loan
& Trust Co. r. Douglas County.....
16. A party who requests instructions on a certain theory can
not complain that the court gave other instructions pro-
ceeding on the same theory. Schrandt v. Young...
17. It is not required that all phases of a case be covered by
one instruction. Savary v. State..
18. Instruction on burden of proof and credibility of witness
need not direct to all matters. Erickson v. Schmill....................... 368
Witnesses.
19. An instruction of general application regarding the credi-
bility of witnesses, otherwise proper and correct, is not
open to objection because the defendant who testified in
his own behalf was the only witness having a direct legal
interest in the result of the trial. Sarary v. State......... 166
Insurance. See MORTGAGES, 11.
Accident Policy. Notice of Loss.
1. In construing a policy as to notice of loss or injury, a more
liberal construction will be given than when conditions
prior to loss or injury are construed. Woodmen Accident
Ass'n v. Pratt......
2. Where a person is injured by a fall which deranged his
mind, failure to give notice is excused. Idem.
3. When notice of injury is not given within the time stipu-
lated, the question of the sufficiency of the excuse must be
determined by the nature of the individual case. Idem.
4. Where an accident policy provided for notice of injury, it
will be ordinarily construed a condition precedent to re-
covery. Idem.
5. Reasonable construction as to notice of injury will be
given to the policy. Idem.
6. Provision as to time in which notice of injury is to be
given is not always to be literally followed. Idem.
7. Evidence in an action on an accident policy, held to sus-
tain a conviction for plaintiff. Idem.
8. A party relying for recovery on a waiver of condition pre-
cedent in a life insurance policy must plead and prove
such waiver or it will be unavailing; and proof thereof can
not be received under a general denial. Anders r. Life Ins.
Clearing Co. ....
9. Evidence in an action on a policy held to present a question
for the jury. Farmers & Merchants Ins. Co. v. Dobney...... 213
Assessments.
10. A mutual insurance company organized under chapter 46,
Session Laws 1899, can not limit, by contract, the number
or amount of assessments for which its members are liable.
Morgan v. Hog-Raisers Mutual Ins. Co.....
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