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49. (1894.) In misdemeanors there are no accessories. Those whose conduct is such that it would constitute them accessories before the fact, if the principal offense were a felony, are, if it be a misdemeanor, guilty as principals. Wagner v. State, 43 Neb. 1 (61 N. W. 85).

49a. (1908.) One who advises others to commit larceny, but who is several miles Cistant at the time of the commission of the offense, and who takes no part therein, but assists in the disposal of the proceeds after the theft has been fully committed, is not a principal, but an accessory. Skidmore v. State, 80 Neb. 698 (115 N. W. 288).

In general.

IV. JURISDICTION.

50. (1897.) Jurisdiction to pronounce a particular sentence is as essential as jurisdiction the person and subject-matter. In re A J. 50 Neb. 481 (70 N. W. 51). Supreme court.

51. (1902.) The only authority the supreme court has to take cognizance of crimes, is that given by the constitution in the grant of appellate jurisdiction. State r. Missouri P. R. Co., 64 Neb. 679 (90 N. W. 877).

County judge.

In

criminal case where the statute creating the offense provides that the punishment may be both a fine and imprisonment. such case the justice can proceed only as an examining magistrate. State v. Yates, 36 Neb. 287 (54 N. W. 429).

56. (1895.) The jurisdiction of justices of the peace is by section 18, article VI of the constitution, limited to offenses for which the penalty prescribed does not exceed three months' imprisonment in the county jail, or a fine not exceeding $100. Keeshan v. State, 46 Neb. 155 (64 N. W. 695).

57. (1895.) The only authority of a justice of the peace under section 17, criminal code, previous to the amendment thereof in 1893, was that of an examining magistrate. Keeshan v. State, 46 Neb. 155 (64 N. W. 695).

Police judge.

58. (1877.) The police judge in cities of the first class has no jurisdiction in cases of felony, except to recognize the accused to appear before the district court for trial. Thompson v. State, 6 Neb. 102).

Crimes committed on Indian reservations. 59. (1875.) The federal courts have no jurisdiction of the crime of larceny alleged to have been committed on an Indian reservation in the state of Nebraska. a complaint filed with the Painter v. Ives, 4 Neb. 122.

52. (1886.) rested upon county judge charging a misdemeanor, and such defendant upon arraignment before such judge pleads guilty to the charge preferred, the county judge has authority, under section 313 of the criminal code, to render judgment of a conviction, within his jusridiction, and enforce the same by imprisonment, as in other cases of a convic tion of misdemeanor. Ex parte Maule, 19 Neb. 273 (27 N. W. 119).

When a defendant is ar

53. (1898.) The criminal jurisdiction of a county court or county judge is the same as that of a justice of the peace. In re Chenoweth, 56 Neb. 688 (77 N. W. 63).

54. (1898.) Section 16, article VI of the constitution, does not invest the county courts of the state with any criminal jurisdiction whatsoever, but authorizes the legislature to define the criminal jurisdiction of such courts within certain limitations. In re Chenoweth, 56 Neb. 688 (77 N. W. 63).

Justices of the peace.

55. (1893.) A justice of the peace has no jurisdiction to sit as a trial court in a

60. (1884.) The courts of this state have jurisdiction and authority to try and punish parties for crimes committed on the Indian reservations within the state. Marion v. State, 16 Neb. 349 (20 N. W. 289, 396); (1886) Marion v. State, 20 Neb. 233 (29 N. W. 911; 57 Am. Rep. 825).

61. (1886.) The courts of this state have no authority to prosecute and punish one Indian for a crime committed against another on the reservation to which they. each belong, so long as they maintain their tribal relations. Ex parte Cross, 20 Neb. 417 (30 N. W. 428).

V. VENUE.

A. Place of Bringing Prosecution. Venue of prosecution for embezzlement, see Embezzlement, § 12.

County or district where offense is committed.

62. (1881.) A district court while sitting in one county, has no jurisdiction over crimes committed in any other organized

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county. Olive v. State, 11 Neb. 1 (7 N. W. 444).

63. (1881.) Under section 11 of the bill of rights, providing that one accused of crime shall have a trial in the "county or district" in which the offense is alleged to have been committed, the term "district" means the division of the state, from which a jury, for the particular term, may legally be drawn. Olive v. State, 11 Neb. 1 (7 N. W. 444).

64. (1894.) By the word "district," as used in section 11, bill of rights, providing place of trial in criminal cases, is not meant "judicial district," but that portion of the territory of the state over which a court may at a particular sitting exercise power in criminal matters. State, ex rel. Scott, v. Crinklaw, 40 Neb. 759 (59 N. W. 370).

65. (1894.) The object of the provision in section 11 of the bill of rights, for the trial of criminal prosecutions in the county or district where the crime is allaged to have been committed, was to embody in the fundamental law of the state the rule of the common law by which the accused was entitled to a trial before a jury of the vicinage or neighborhood, in order that he might have the benefit of his good character. State, ex rel. Scott, v. Crinklaw, 40 Neb. 759 (59 N. W. 370).

66. (1894.) The word "district," as used in section 11, bill of rights, providing place of trial, may, and generally does, refer to the county where the crime is supposed to have been committed, but also includes any and all territory, by law, attached to such county for judicial purposes. State, ex rel. Scott, v. Crinklaw, 40 Neb. 759 (59 N. W. 370).

67. (1894.) The constitutional right to a trial before a jury of the county or district where the crime is alleged to have been committed is a mere personal privilege of the accused, and not conferred upon him from any consideration of public policy. State, ex rel. Scott, v. Crinklaw, 40 Neb. 759 (59 N. W. 370).

Waiver of right.

68. (1894.) When the defendant in a criminal case makes application for a change of venue under the provisions of the criminal code, he thereby waives the constitutional right to a trial before a jury of the county or district where the crime

is alleged to have been committed. State, ex rel. Scott, v. Crinklaw, 40 Neb. 759 (59 N. W. 370).

Offenses committed in unorganized territory.

69. (1876.) The act of February 25, 1875, authorizing any judge of the district court to designate the county in his district where an indictment may be found, and persons tried for felony committed in any unorganized county attached to suck district, or in any county where no district courts are held, so far as it applies to such unorganized counties, is not unconstitutional; and the court of any county so designated has jurisdiction of the offense Dodge v. State, 4 Neb. 220.

70. (1876.) If the indictment contain an averment of designation under the act authorizing the district judge to designate the county in which to find the same, suficient appears of record to show that the court had jurisdiction, though no distinct copy of the order of the judge be set forth therein. Dodge V. State, 4 Neb. 220 [Overruled. Aultman v. Martin, 49 Neb. 103 (68 N. W. 340).]

71. (1881.) A county which has been organized for local government, under the law providing therefor, must be considered as organized for judicial purposes within the meaning of act of February 24, 1879, providing that when a crime is committed "within any unorganized county" the indictment may be found and the trial had in another county. Olive v. State, 11 Neb. 1 (7 N. W. 444).

72. (1882.) Unorganized territory at tached to a county for "election, judicial, and revenue purposes" is, for such purposes a part of such county, and the district court sitting in that county has jurisdiction over crimes committed in said unorganized territory. Ex parte Crawford, 12 Neb. 379 (11 N. W. 494).

73. (1887.) Under chapter 10 of the Revised Statutes of 1866, all unorganized counties were attached to the nearest organized county directly east, for election. judicial, and revenue purposes; therefore, where a murder was alleged to have been committed in the county of Sioux, the party accused of committing the same could not be indicted and tried for the offense in Cheyenne county, it being directly south of Sioux county. Ex parte Carr, 22 Neb. 535 (35 N. W. 409).

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Discretion of court.

76. (1881.) An application by accused for a change of the place of trial, is addressed to the sound discretion of the trial court, and unless abuse thereof is clearly shown, a decision on such application, will not be interfered with. Olive v. State, 11 Neb. 1 (7 N. W. 444).

77. (1876.) Applications for change of venue, are addressed to the sound discretion of the court, and its ruling thereon will not be disturbed, where there is no abuse of that discretion. Smith v. State, 4 Neb. 277; (1900) Welsh v. State, 60 Neb. 101 (82 N. W. 368); (1901) Argabright v. State, 62 Neb. 402 (87 N. W. 146); (1902) Goldsberry v. State, 66 Neb. 312 (92 N. W. 906); (1903) Jahnke v. State, 68 Neb. 154 (94 N. W. 158); (1905) Sweet v. State, 75 Neb. 263 (106 N. W. 31).

78. (1905.) If there is such a prejudice in the minds of the people of the county against the defendant, or such a firm conviction of his guilt of the crime charged against him that there is substantial and well-founded reason to believe that he cannot obtain a fair trial in the county, the venue be constitution requires that the changed. The trial court must exercise dis cretion in determining these facts, but has no discretion to refuse the change of venue when these facts appear. Lucas v. State, 75 Neb. 11 (105 N. W. 976).

Application.

79. (1881.) A motion for a change of plan of trial to a particular county is bad,

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80a. (1884.) In the trial upon an indictment for rape and assault with intent to commit, the trial coming on a few weeks after the charge was made, the accused filed affidavits of leading citizens showing strong bias and prejudice against him, so that a fair trial could not be had in that county, and the affidavits filed on behalf of the state did not deny these statements in clear and direct language. Held, That a change of venue should have been granted. Richmond v. State, 16 Neb. 388 (20 N. W. 282).

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81. (1901.) It is not error to overrule an application for a change of venue in a criminal trial when from all the evidence introduced in support and in resistance of the application, there is not shown to exist any reasonable ground for the belief that the defendant cannot have a fair and impartial trial in the county from which a change of venue is applied for. Argabright v. State, 62 Neb. 402 (87 N. W. 146).

82. (1902.) If from the showing made in support of and against the motion for a change of venue in a criminal case, there is no reasonable ground shown on which to found a belief that the accused cannot have a fair and impartial trial in the county where the offense is alleged to have been committed, it is not error to deny such motion. Goldsberry v. State, 66 Neb. 312 (92 N. W. 906); (1905) Sweet v. State, 75 Neb. 263 (106 N. W. 31).

83. (1903.) If, upon the showing made in support of and against an application for a change of venue, it does not appear that there exists reasonable grounds on which to found a belief that the defendant cannot have a just trial in the county by a fair, unbiased and impartial jury, the trial court may properly overrule the application. Jahnke v. State, 68 Neb. 154 (94 N. W. 158).

Transmission of record.

84. (1877.) On a change of venue in a criminal case, the original indictment must be transmitted to the clerk of the court

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86. (1889.) Upon the removal of a criminal prosecution from the county in which the offense was committed, to an adjoining county upon change of venue, it is not the duty of the county attorney of the former county to follow the case to the latter county, but it is the duty of the county attorney of such adjoining county to represent the state in the prosecution of the case; and in such case where the county attorney of the adjoining county is under the disability of having appeared in the case as counsel for the accused, it is the duty of the court to appoint an attorney to act as county attorney in the prosecution.

proceedings, such offenses as are designated by Our statute as felonies and misdemeanors, and does not apply to mere civil actions for the recovery of penalties. Mitchell v. State, 12 Neb. 538 (11 N. W. 848).

90. (1892.) The fundamental law of the state as well as that of the United States. forbids that one shall be put twice in jeopardy for the same act. In re Jones, 33 Neb. 499 (53 N. W. 468).

91. (1906.) To constitute a former jeop ardy, it must appear that the defendant was put upon trial before a court having jurisdiction, upon an indictment or an information sufficient in form and substance to sustain a conviction, and that the jury were impaneled and sworn, and thus charged with his deliverance. Steinkuhler v. State, 77 Neb. 331 (109 N. W. 395). Prosecution in foreign country.

92. (1877.) The rule of constitutional law cannot span country and country in such a way as to cause jeopardy in one country to free the party from trial in another, but as "a sort of merciful dispersation" a court may consider favorably the

Gandy v. State, 27 Neb. 707 (43 N. W. 749, fact, if it exists, that the accused had been

44 N. W. 108).

VI. LIMITATION OF PROSECUTION. Necessity of pleading statute, see post, § 182.

Limitation applicable.

87. (1895.) A prosecution for a misdemeanor, where the penalty fixed by statute is restricted to a fine of not exceeding $100 and to imprisonment not exceeding three months, must be instituted within one year from the time such offense was committed. Jolly v. State, 43 Neb. 857 (62 N. W. 300). Commencement of prosecution.

88. (1898.) The filing of an information in the district court in term time, and not the filing of the complaint with the county judge, held the commencement of the prosecution within the meaning of the statute of limitations. State v. Robertson, 55 Neb. 41 (75 N. W. 37).

VII. FORMER JEOPARDY. Plea of former jeopardy, see post, §§ 183189.

Mistrial or conviction for petit larceny as former jeopardy, see Larceny, §§ 29, 30. In general.

89. (1882.) The constitutional inhibition as to jeopardy applies only to criminal

prosecuted and punished for the same of fense in a foreign country, when it appears that he was convicted and his punishment was full and complete. Marshall v. State. 6 Neb. 120 (29 Am. Rep. 363). Jurisdiction as element of former jeopardy.

93. (1877.) It is indispensable to the plea of former conviction that the court. whose record is relied upon to sustain it, had jurisdiction of the offense. Thompson v. State, 6 Neb. 102.

94. (1907.) The judgment of a court having no jurisdiction of the subject-matter does not constitute a bar to the second prosecution based upon the same charge as that upon which the first judgment was pronounced. Peterson v. State, 79 Neb. 132 (112 N. W. 306).

Preliminary examination.

95. (1880.) Where a person accused of an offense is arrested and taken before a magistrate for examination and is discharged. such discharge does not bar another examination for the same offense, before the same or another magistrate, upon a new complaint being filed. An examination is not a trial. In re Garst, 10 Neb. 78 (4 N. W. 511). 96. (1901.) A plea in abatement,

grounded on the fact that defendant had two preliminary examinations and that on the first he was held for a lower grade of crime than upon the one which is the basis of the informatior filed against him, is demurrable. Thompson v. State, 61 Neb. 210 (85 N. W. 62; 87 Am. St. Rep. 453).

97. (1902.) A second preliminary hearing may be had where the first has resulted in a discharge of the accused. Van Buren v. State, 65 Neb. 223 (91 N. W. 201). Discharge of jury without verdict.

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98. (1884.) The defendants were dicted upon arraignment, pleaded not guilty, and a jury was impaneled to try the cause. The defendants objected to any testimony being given in support of the indictment for the reason that it did not charge the commission of a crime. The objection was sustained and the jury discharged without a verdict and without objection by the defendants; Held, That this did not constitute an acquittal which could be plead and maintained as a plea in bar to a subsequent indictment. State v. Priebnow, 16 Neb. 131 (19 N. W. 628).

99. (1897.) Prisoner held not entitled to a discharge on ground of former jeopardy upon a record showing that after a trial began a member of the jury became sick; that the juror was examined by a commission and found to be insane; and that the jury was discharged. Davis v. State, 51 Neb. 301 (70 N. W. 984).

100. (1897.) Insanity of a juror held to be a calamity authorizing the discharge of a jury. Davis v. State, 51 Neb. 301 (70 N. W. 984).

101. (1901.) Whether a mistrial resulting from the discharge of a jury because of the illness of one of its members constituted former jeopardy not decided. Sharp v. State, 61 Neb. 187 (85 N. W. 38). Acquittal as to part of counts.

102. (1899.) Where an information, in different counts, charges separate and distinct crimes, and the accused, on the trial, is acquitted on a count charging one crime but is convicted on a count charging another crime, he cannot, on a new trial being granted, be tried for the offense of which he was acquitted at the former trial. George v. State, 59 Neb. 163 (80 N. W. 486). Judgment reversed.

103. (1895.) When the defendant in a criminal prosecution is adjudged guilty of

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104. (1904.) An ineffectual attempt of the district court to render a judgment on a verdict according to the provisions of the law, does not deprive that court of the power to pronounce a valid judgment against the accused. McCormick v. State, 71 Neb. 505 (99 N. W. 237).

Confinement under judgment.

105. (1895.) The confinement of a convict from the date of conviction until the date fixed for his execution is not a part of the penalty for a capital offense. McGinn v. State, 46 Neb. 427 (65 N. W. 46; 50 Am. St. Rep. 617; 30 L. R. A. 450).

106. (1895.) While the practice of confining persons convicted of capital offenses from the date of sentence until the day of execution has prevailed from time immemorial, such confinement is not a part of the penalty, although a necessary incident thereof, and the power of the court in that regard does not rest upon any positive provision of statute. McGinn v. State, 46 Neb. 427 (65 N. W. 46; 50 Am. St. Rep. 617; 30 L. R. A. 450).

107. (1904.) Confinement in the penitentiary under a void or erroneous sentence, because of the failure of the accused to obtain a suspension of his sentence during the pendency of his proceedings in error, is in no sense a part execution of a legal sentence; and by the rendition and execution of a legal judgment, the accused is not twice punished for the same offense. McCormick v. State, 71 Neb. 505 (99 N. W. 237).

Identity of offenses.

108. (1877.) A conviction for petit larceny, for stealing goods of the value of $35, by a police court is no bar to an indictment for grand larceny for stealing the same goods. Thompson v. State, 6 Neb. 102.

109. (1877.) If the accused is charged in one count, in an indictment, with an offense for which he was convicted in a foreign country, and also in a second count is charged with a different and distinct offense, the plea of autrefois convict is bad.

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