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BURLEY V. THE STATE.

mined in overruling the motion to quash. The jurisdiction of the court is challenged by stating legal conclusions merely. No fact is stated which can be considered as enti. tled to any weight whatever, and the plea was properly disposed of.

Another error assigned is, that the prisoner was put upon his trial without having plead to the indictment. If this were true, it would be error. But does the record show this was done? It discloses the fact that the plea of “not guilty" was interposed by the defendant on his arraignment. But it is urged, with much force, that inasmuch as a motion to quash, and a plea in abatement were afterwards filed and acted upon by the court, the presumption arises that the plea of “not guilty” must have been withdrawn before they were filed. If the subsequent pleas were incon. sistent with the plea of not guilty, this might be true.

But they were not, and the record being silent on this point we must presume that the motion to quash and the plea in abatement were filed and determined, with the plea of not guilty upon the record.—1 Bishop's Crim. Pro. 437, 447 ; Commonwealth v. Chapman, 11 Cush. 422.

The next error assigned is, that the court refused to permit certain questions to be put to three of the witnesses, called by the prosecution, on their cross-examination.

Of these witnesses, John Rice and John Fritchie, who, together with the prisoner, the deceased and several other persons, took dinner at a shanty near which, and a short time before, tbe deceased was killed, on their direct exam ination, had testified to certain acts and declarations of the prisoner and deceased, tending to establish defendant's guilt, and on cross-examination they were asked certain questions tending to show that they were intoxicated at that time, but objection being made by the attorney for the State, the testimony was excluded from the jury. In this we think there is error. It is always of vital import

BURLEY V. THE STATE.

ance to ascertain the exact condition of the mind of a wit. ness at the time of a transaction or conversation about which he is testifying. The jury should be informed of all the influences affecting his mind, so as to enable them to determine whether it was in such a condition as rendered him capable of understanding, recollecting and narrating correctly what actually took place. And if for any reason, such as imbecility or excessive intoxication, the witness was in such a state of mind as rendered him incapable of exer. cising a correct discrimination, the court and jury should know it. In rejecting this testimony, we are of the opinion the court was in error.—2 Phil. Evi. Cown and Hill and Edwards' notes, 950, note 596, and cases there citea.

There is one other point deserving notice. The record discloses the fact that several persons summoned as grand jurors having been excused from serving, their places were filled by the court by transferring from the list of petit jurors enough to make up the requisite number. This was unauthorized by the law, and rendered the grand jury, when thus organized, an illegal body. Section 664 of the Code of Procedure, regulates the filling of vacancies in both grand and petit juries. It provides that in such case "the court may order the sheriff, deputy sheriff or coroner, to summon, without delay, good and lawful men having the qualifications of jurors, and each person so summoned shall forth with appear before the court and, if competent, shall serve on the grand and petit jury, as the case may be, unless such person shall be excused from serving or lawfully chal. lenged." Although in this case it is not claimed or even suggested that any injustice was done the prisoner by this irregularly selected jury, still we cannot shut our eyes to the fact that it would be a most dangerous precedent, if permitted to stand. If so wide a departure from the statutory mode of selecting grand jurors were adjudged to be an unimportant informality, to be disregarded, where could

BURLEY V. The State.

we stop ? Could not every provision of the law be disregarded with just as much reason, and the judge select the jury in his own way, and of the material best suited to the accomplishment of his own purposes ? The grand jury must be selected in the manner prescribed by the law. There is no security to the citizen but in a rigid adherence to the legislative will, as expressed in the statutes made for our guidance.

The judgment is reversed and cause remanded to the District Court for Lincoln county, for further proceedings.

THE MIDLAND PACIFIC RAILROAD Co. v. MCCARTNEY.

The Midland Pacific Railroad Co. v. McCartney.

1. PRACTICE: Verdict. The appellate court will presume the verdict of the

jury sustained by the evidence, unless the contrary fully appear.

2.

:

All the evidence adduced on the trial should be preserved in the bill of exceptions, and the fact be accordingly stated, in order to justify a claim that the court below erred in refusing a new trial, asked for on the ground that the verdict was not sustained by sufficient evi. dence

3.

-: Motion for new trial. Errors in the admission or refusal of testi

mony on the trial and in giving or refusing instructions to the jury will be considered as waived, unless complaint thereof be made in the motion for a new trial.

This was a petition in error filed in this court by the Midland Pacific Railroad Company. The facts are fully stated in the opinion except the single one that a motion for a new trial was filed in the court below, and that errors assigned in the petition in error are not included in the motion.

S. H. Calhoun and John H. Croxton, for plaintiff in error.

a

The line of plaintiff's railway crosses the defendant's land. Defendant refused to give the right of way across the same. Appraisers, appointed as required by the laws of Nebraska, on actual view appraised the same.

From this appraisement defendant appealed to the District Court of the First Judicial District, in and for the county. On a trial in sạid court, before a jury, the damage was reassessed. In this trial plaintiff claims that there was error, as set forth in their petition in error filed in this court.

The plaintiff holds the true rule of the assessment of damages in cases of this kind to be: That the jury shall confine themselves to estimating real value of the land taken, without going into any conjectural and speculative

THE MIDLAND PACIFIC RAILROAD Co. v. MCCARTNEY.

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estimations of consequential damages. And this can only be truly and fairly done by determining the value of the whole land without the railway, and the portion remaining after the railway is built. The difference is the true assessment of the damages—the true compensation to which the owner is entitled, except when there is some special benefit resulting or accruing to the remainder of the land by reason of the location and operation of the railway through or over the same; in which case the amount of such special benefit is to be deducted from the amount of the damage so ascertained. The remainder, if anything, will be the amount of damage which the owner of the land would be entitled to receive.-Henry v. The Dubuque & Pacific Railway Co., 2 Iowa, 288; Meacham v. Fitchburg Railway, 4 Cush. 291; Upton v. South Reading Railway, 8 Cush. 600; Albany N. Railway v. Lansing, 16 Barb. 68 ; Canandaigua & N. Railway v. Payne, 16 Barb. 273; Greenville & C. Railway v. Partlow, 5 Rich. 428; White v. Charlotte & 8. C. Rail. roud Co., 6 Rich. 47; A. & $. Railway Co. v. Carpenter', 14 N. 190; Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, 14 Ohio, 541; McIntire v. State, 5 Blackf. 384; State v. Digby, 5 Blackf. 543; Troy & Boston Rail. way v. Lee, 13 Barb. 169-71; Mutter of F Street, 17 Wend. 649 ; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. Cily of Boston, 15 Pick. 198; Somerville Railway v. Doughty, 2 Zab. 495 ; Columbus P. & J. Railway v. Simpson, 5 Ohio St. 251; Rochester & Syracuse Railway v. Budlong, 6 How. Pr. 467 ; Sater v. B. & Mt. Pl. Railway, 1 Clarke, 386; Harvey v. Lackawana & Bloomsburg Railway, 47 Penn. St. 428; Win. & St. Peter's Railway v. Denman, 10 Minn. 267; Whitman v. Boston & Maine Railway, 3 Allen, 133; Livermore v. Jamaica, 23 Vt. 362; Indiana Central Railway v. Hunter, 8 Ind. 74; Robbins v. Milw. & Hor. Railway Co., 6 Wis. 636; Nashville Railway v.

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