in this case, which was subsequently al lowed, there was no evidence offered nor allegation showing when the levy sought to be enjoined is to be made, or what the amount will be. The relief sought is to enjoin every levy for the court-house purposes. It is claimed that the levy for the year 1889 aggregates 15 mills to the dollar on the $100 valuation, and that the interest on the bonds requiring an ad. ditional levy of 68-100 of a mill to the 15 mills already assessed would exceed the limit of section 5 of article 9 of the constitution. The court is not informed, and bas no means of estimating, what assessment, in the future, may be required to pay this interest. As a speculative inquiry, it might be assumed that the levy would be less from the county's erection of its court-house and public offices, and the elimination of its expenses for rent of buildings for county purposes; and this economic question is one solely for the County authorities, and we leave it there. The former decision is affirmed. The other judges concur.

COUNTY OF DODGE v. KEMNITZ.1 (Supreme Court of Nebraska.

June 30, 1891.) BASTARDY-Judgment-CuSTODY OF CHILD.

1. In a bastardy case, where the jury return a verdict of guilty against the defendant, it is the duty ordinarily of the court to charge him with such sum or sums for the maintenance of the child

as it shall deem proper, and require him to give security to perform the order.

2. If the mother be dead, the child may be placed in the care of the putative father, in which case no order for the payment of money will be necessary. The judgment, however, continues subject to modification during the minority of the child, and, if the child is ill treated by its father, or those having its care, the court, upon the proper application, may make such further order as may be necessary for its maintenance and protection.

3. There being no bill of exceptions, and error not affirmatively appearing, the judgment is affirmed.

(Syllabus by the Court.)

Error to district court, Dodge county; MARSHALL, Judge.

Geo. L. Loomis, and C. Hollenbeck, for plaintiff in error. Frick & Dolezal, for defendant in error.

MAXWELI., J. This case was before this court in 1889, and is reported in 44 N. W. Rep. 184, the judgment being reversed. On the second trial the jury found the defendant guilty, where upon the court rendered judgment that he was the putative father of the child, and required him to give a good and sufficient bond to Dodge county, in the sum of $1,000, "conditioned that he will save the county of Dodge free from all expense on account of the support of said bastard child," etc. This bond has been given and approved, but the county contends there should have been a provision for the support of the child. Section 6, c. 37, Comp. St. provides that, "in case the jury find the defendant guilty, or such accused person before the trial shall confess in court that the accusation is true, he shall be adjudged the reputed father of said child, and shall stand charged with the maintenance thereof in such a sum or 1 Petition for rehearing pending.

sums as the court may order and direct, with payment of costs of prosecution; and the court shall require the reputed father to give security to perform the aforesaid order, and, in case the said reputed father shall neglect or refuse to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the county, to remain till he shall comply with the order of the court. The statute evidently was intended to require the father to provide suitable maintenance considering his condition for his own child, and ordinarily the judgment should be in that form. In this case, however, the mother is dead, and the care of the child may devolve on the father. 2 Amer. & Eng. Enc. Law, 142. If the mother is dead, the court should, as far as possible, provide for the safety and welfare of the child. While in such case the father may be intrusted with its nurture and care, if he was not a suitable person, or should by himself or others ill-treat the child during its minority, it would be the duty of the court to so modify the judgment that the amount due thereon for its support and maintenance should be paid to some person who would, in good faith, provide it with necessaries and a home. The testimony in the case is not preserved in the record. It may be and probably is a fact that the defendant is providing for the child at his home. If he is not, he is liable inally in favor of the county, is nevertheless for its support. The judgment, while nomfor the support of the child, and is subject to further modification by the court as to its application. Error does not affirmatively appear in the record, and the judgment is affirmed. The other judges con

cur.

OWENS V. STATE.

(Supreme Court of Nebraska. June 30, 1891.) INCEST PREJUDICE of Juror-Evidence.

1. A juror in a criminal prosecution disclosing on his voir dire that he has an opinion as to the guilt or innocence of the accused, based on rumor and what he has heard in the court-room, which will require evidence to remove, is incompetent, though he may state that he can render an impartial verdict under the law and evidence. Miller v. State, (Neb.) 45 N. W. Rep. 451; Curry v. State, 4 Neb. 548; Cowan v. State, 22 Neb. 523, 35 N. W. Rep. 405; Olive v. State, 11 Neb. 1, 7 N. W. Rep. 444.

2. The evidence examined, and held not to sustain the verdict.

(Syllabus by the Court.)

Error to district court, Gage county; BROADY, Judge.

Rickards & Prout, for plaintiff in error. Wm. Leese, Atty. Gen., for the State.

COBB, C. J. At the February term, 1890, the grand jury for said county presented an indictment against Owen R. Owens for incest, charging that on April 15, 1889, he feloniously, rudely, and licentiously co habited with one Sarah Ann Owens, his daughter, as he then well knew. On the 24th of February the defendaut pleaded not guilty. On the 5th of March there was a trial, and the jury found the defendant guilty as charged. A motion in arrest of judgment and for new trial having

example sufficiently demonstrates the er. ror, directly parallel with it, in the present case.

The

The first error presented is that of impaneling the juror Joseph Ramsey, who was examined on his voir dire, and replied to the question, "Do you know anything about this case? Answer. Nothing, only what I have heard since I came into the court-room. Question. Have you heard the facts stated, on which the case is founded? A. Nothing more than rumor. Q. What you heard, did it make any impression on your mind? A. If it was proved, it has; if not, it has not. Q. Then you bave an impression now, have you not? A. To a certain extent, if they prove the facts I have heard. Q. And it is such an impression or opinion as would require evidence to remove, would it not? A. Well, yes; of course. By the Court. You think, notwithstanding what you have heard, you could give the man a fair trial, do you? A. Yes, certainly.” challenge of the juror for cause was overruled by the court, and he was sworn, and sat with the panel. On April 30, 1890, there was heard here, and decided on error to the district court of Gage county, the case of Miller, under sentence to be hang for murder. On that trial the juror Garrison, having formed an opinion based on rumor and from reading newspaper accounts, answered on his voir dire to the question, “Will it not require some testimony to remove that opinion from your mind? Answer. Yes, it will take some evidence. Question. You could not sit in this jury-box, and commence at the beginning of the trial of the case, without having some testimony to remove the bias and prejudice against the defendant, or in his favor; is that not so? A. Yes; I would have to have some testimony. By the Court. Notwithstanding any opinion you have formed, could you give this defendant a fair and impartial trial upon the law and evidence? A. I can. Would you consider the testimony, the same as if you had not heard any thing about it? A. Oh, yes; I would consider the testimony the same." As to the error of impaneling this juror, the court said: "It is obvious that, under the rule laid down by this court in numerous cases, Garrison was not a competent juror. While he doubtless believed he could hear the testimony and render an impartiai verdict, his private opinion, that would have to be overcome with testimony, would prevent him from doing so. The defendant was required to excuse the juror peremptorily, which exhausted his last challenge, and was prejudicial error. Miller v. State, (Neb.) 45 N. W. Rep. 453; Curry v. State, 4 Neb. 548; Cowan v. State, 22 Neb. 523, 35 N. W. Rep 405; Olive v.

Q.

On the trial the court gave to the jury 5 instructions requested by the prosecuting attorney and refused 2; gave 6 instructions requested by the defense, with additions and modifications, which are assigned as errors, and refused 20. Of its own motion the court instructed as fol. lows: "The indictment is based upon the section of the statute that, 'If a father shall rudely or licentiously cohabit with his own daughter, the father shall, upon conviction, be punished by imprisonment in the penitentiary.' There cannot be a cohabitation, within the meaning of this law, without carnal knowledge, otherwise called 'sexual intercourse.' This charge may consist of a single act of carnal knowledge, or a continuous series of such acts,-for a day, or less time; or, if continuous, it may be for a week, a month, or year, or a number of years. All the essential elements of the crime are contained in the allegations of the indictment, to which you are referred, but which is not evidence. (2) It is not incumbent on the defendant to prove his innocence. Not as a mere form, but by a substantial part of the law, he is presumed to be innocent, and not guilty, until his guilt is proven to the satisfaction of each and every one of you, beyond a reasonable doubt; and this presumption is a matter of evidence, to the benefit of which the defendant is entitled. Mere suspicion, or reason to suspect, however strong, a probability on the doctrine of chances, or simply a preponderance of evidence, is not sufficient to overcome the presumption of innocence, but it continues as long as there is a reasonable doubt of any fact necessary to convict; and it matters not whether the ingenuity of counsel has been instrumental in bringing about the doubt, provided 'it arises from the whole evidence in the case. (3) The evidence, to justify a conviction, must be, beyond all reasonable doubt, consistent with the hypothesis of guilt, and inconsistent with any hypothesis of innocence that can reasonably be drawn from the evidence. (4) It is competent to convict on circumstantial evidence, if strong enough to satisfy the jury beyond a reasonable doubt. The conviction or acquittal must be solely on the evidence, and not at all outside of the evidence. But the evidence, and the facts and circumstances proven, the jury must consider in the light and common knowledge and experience of mankind. No conviction can be had of any fact offered only as circumstantial evidence; as, for instance, evidence of defendant's being in bed with his daughter. No conviction can be had for that act simply, but it, with others proven, may be considered as circumstantial evidence of carnal knowledge, and the carnal knowledge must be proven to con. vict. (5) In order to convict, the state must prove every essential ingredient of the crime charged, and every material allegation of the indictment, beyond a reasonable doubt. If this has been done, you should convict; but if it has not been

done, you should acquit. (6) A reasonable doubt, within the meaning of the law, is such a doubt as would cause a prudent and considerate man, in the graver and more important affairs of life, to pause and hesitate before acting upon the truth of the matters charged. It does not mean the possibility that the accused may be innocent, nor does it mean a chimerical doubt, or one based upon groundless conjecture; but it does mean actual, substantial doubt; and if, upon full consideration of all the evidence for the state, and for the defendant, your minds are in that condition that you cannot say that you feel a confidence, amounting to a moral certainty, from all the evidence in the case, that the defendant is guilty, then you have a reasonable doubt. (7) The instructions given you, whether at the request of the state, or of the defendant, or of the court's own motion, are alike the instructions of the court, and are binding on you. They are all of the law, and are not contradictory, as you will find upon careful examination." It is not deemed important, in order to reach a conclusion on the errors assigned, to review at length the 11 additional instructions given at the request of the contending counsel. They are apparently as conflicting and as partial as was the spirit of prosecution and defense of the advocates who presented them. It is required of the court to give or refuse instructions presented by counsel at the trial, and the court could not have improved its administration of the law, in this instance, except by the refusal of the whole series offered by counsel. As paradoxes, they tended to the confusion of the jury. Those given on the court's own motion are to be characterized as an impartial and satisfactory charge to the jury, both for the prosecution and the defense.

The error now to be considered is that of the insufficiency of the evidence against the defendant. An examination of the records of the trial discloses the affairs of a family steeped in wretchedness. The father, broken down with toil and sickness, at the age of 56; an absent and distracted wife and mother; the son Robert, an itinerant laborer, of 25; Isaac, a boy of 14; Thomas, still younger; and the wayward and untutored daughter, Sarah Ann, at the age of 22, the mother of four illegitimate children. The family seem to have been bred without the least education, either in their native tongue or the English language, and could barely give testimony in broken expressions of the latter. A homestead of 80 acres had been secured by the labor of the father, with a dwelling, 16 by 22, comprising a single room, for all purposes, on the first floor, and two rooms partitioned above. The house in all supplied three beds, fully infested with vermin, and occupied by the six or eight members of the family. Extreme poverty with no semblance of selfrespect of its inmates marked this home. The father, a portion of the time for six years, was not able to do a man's work, and was occasionally bedridden of asthma, fever, or rheumatism. He alleged an injury from a fall in rescuing property in

the house set afire by his wife. There had occurred domestic broils between husband and wife, and between mother and daughter, possibly owing to the latter's misconduct, but no violent disputes are related by witnesses. There is no suggestion that the father was drunken, or in temperate, or of a vicious disposition. Nothing is alleged against him except the crime of the indictment. The prosecuting witness, his son Robert, testified on the trial to the fact of having seen his father and sister sleeping in bed together; that his mother was then present at home; that no complaint or accusation was ever made by her, or any one at home, about it; that he never saw anything wrong between them, except sleeping in the same bed; and could not tell when, or how often, this had occurred. Isaac, aged 14, was called as a witness by the state. He had no conception of the nature of an oath, or of a lie, or of a future state after death, but thought it was the grave-yard. His testimony was withdrawn. The daughter Sarah Ann testified that she had borne four illegitimate children, at the age of 22. The first and second were dead, the third was at home, and she had an infant in arms at the trial. She accounted, circumstantially, for the male parentage of ber children, when and where they were begotten, and by whom. She admitted that she had slept in her father's bed for a week and a half, when he was sick, to give him medicine, when her mother would not. She denied emphatically that her father had ever, at any time, had intercourse with her. The prisoner was sworn and testified in his own defense that daughter had slept in his bed; that he had never had intercourse with her; and corroborated her testimony as to the male parentage of her children. In rebuttal, the prosecution called neighbors as witnesses who admitted they had not been at the prisoner's house more than two or three times in six or seven years, and who testified that they had not seen or known of the persons whom the daughter charged with the parentage of her children to have been in that neighborhood at such times as she had stated. This is the pertinent evidence in rebuttal, and these are the salient features of the prosecution. The absurdity of the last proof submitted is apparent, as it does not reach the dignity of a negative pregnant. The prosecution was obliged to depend upon the prisoner's household for proof of the offense. It was, then, the prosecutor's privilege to have called the absent wife of the prisoner, and to submit to the jury her testimony of the criminality of her husband, and the parentage of her daughter's children; and it would seem to be a gross error on the trial to permit the argument to go to the jury that the prisoner should have called her, in his defense, to prove his innocence, and that he was responsible for her absence. The inference is strong that her testimony would have acquitted the defendant. In Lord v. State, 17 Neb. 526, 23 N. W. Rep. 507, it was held, and consistently maintained, by reason and precedent, that a wife may be called by the state to testify against her hus

his

band on an indictment for adultery. This rule remains; and, if for adultery, the more swiftly might she be called on an indictment for incest. It is of common knowledge and experience that we sometimes observe, in a refined, Christian community, the unpardonable offense of a daughter's notorious unchastity becoming so repugnant to the moral sense of a neighborhood that an entire family will be ostracized and driven out. It is not, then, surprising that the degraded condition of the present example, and of her family, should have provoked the conviction of some victim in expiation of the offense. But the law does not charge the prisoner with his degradation, but charges him with his crime; and, whether victim or felon, the penal behest of the law abhors a conviction upon a partial trial, and upon insufficient evidence. The judgment and sentence of the district court are reversed, and the cause remanded for further proceedings in accordance with law. The other judges concur.

TURNBULL v. NORTHWESTERN TERRA
COTTA CO.

(Supreme Court of Minnesota. July 7, 1891.) PRINCIPAL AND AGENT-AUTHORITY-EVIDENCE.

1. Upon the question of the character of an agency, that is, whether the agency is general, -the agent having the exclusive right to make sales of the principal's wares within certain territory, so as to entitle the agent to compensation for sales within the territory made by himself or the principal, or a limited agency, the agent to make such sales as he could, and receive pay for such as he made,-the direct evidence being conflicting, the acts of the agent known to and acted on by the principal may be shown.

2. Evidence held sufficient to sustain the verdict.

(Syllabus by the Court.)

Appeal from district court, Hennepin County; SMITH, Judge.

Fred C. Cook, for appellant. W. E. Leavitt, for respondent.

GILFILLAN, C. J. Whether plaintiff should recover the amount claimed in his complaint, or defendant recover the counter-claim alleged in its answer, was, by agreement on the trial, made to depend on the character of the plaintiff's agency. He claimed that it gave him the exclusive right to make sales, at a specified commission to him, of defendant's wares within the cities of St. Paul and Minneapolis, so that he would be entitled to the commission on sales made by the defendant itself. The defendant claims that he was merely authorized to make such sales as he could, and was to receive pay only for such as he made. The direct evidence as to the character of the agency was that of the plaintiff and of the president of the defendant, and was flatly contradictory. What the agent did, and the manner of doing it, known to and acted on by his principal, the letters and telegrams between them relating to the business, what was said by the president in introducing plaintiff to anticipated customers, and whatever would tend to show the situation as it was known to both parties, was com

petent upon the question. The objection urged against the evidence of that character goes rather to its weight than its admissibility. It was not very important; it certainly left the question in doubt; but the jury might consider that, so far as it went, it supported plaintiff's version of the agreement creating the agency. The instructions of the court excepted to did not go beyond so charging the jury, and were correct. The evidence justified the verdict. Order affirmed.

MOODY V. THWING et al.

(Supreme Court of Minnesota. July 7, 1991.) ACCOUNT STATED-IMPEACHMENT PLEADING-EVI

DENCE.

1. Evidence held sufficient to sustain the findings of fact.

2. Transaction held to constitute an account stated.

3. An account stated being alleged in the complaint and merely denied in the answer, no facts to impeach it being alleged, evidence to impeach it is not admissible.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; HOOKER, Judge.

Albert F. Foster, for appellant. W. B. McIntyre, for respondent.

GILFILLAN, C. J. The complaint alleges, in effect, a statement of the accounts between plaintiff and the defendants Thwing whereby a certain amount was found due the plaintiff, $290, subject to have deducted from it, as we understand it, any bills not yet paid by the Thwings that might afterwards be presented to and paid by them, for work or material on the buildings. Except as to any such outstanding bills that they might have to pay, the accounts were stated. The answer denies this, but does not allege anything, as mistake or fraud, to surcharge or falsify the account. Upon that the issue was simply, was there a settlement and statement of the account as alleged in the complaint? The court below found there was, and we think the evidence justifies that finding. As the settlement was made by Joseph E. Thwing, the husband of Mary A., the owner of the buildings, his authority to make it had to be shown. It is true Joseph E. denies such authority, but in view of his relation to Mary A., and the fact testified to by plaintiff and not denied by defendants, that he was the only one who had anything to do with the payment for the houses or looking over the accounts, the court might find he was her agent to transact the business. Both plaintiff and Joseph E. testify there was a settlement upon which plaintiff gave a receipt for $290 in full, and Joseph E. signed a writing in these words and figures: "Minue. apolis, Nov. 14th, 1888. $290. Thirty days after date there is due C. B. Moody two hundred and ninety dollars, the same being in full for all work and demands on the houses on lots 2 and 3, block 9, Thwing's addition, which he has built under contract with Mary A. Thwing. C. B. Moody, on accepting this due-bill, agrees that in case any more bills come in on the said work, except against A. A.