Trial of issues raised.

175. (1883.) If the plea contain a material averment on which issue is joined, it is error for the court to refuse the prisoner a trial of it. Bohanan v. State, 15 Neb. 209 (18 N. W. 129).

176. (1884.) When a plea in bar is interposed to a prosecution upon indictment, which is clearly insufficient, a demurrer may be filed thereto without resorting to the formality of impaneling a jury to try the issue presented by the plea. But if the plea states facts which, if true, would constitute a bar to further prosecution, the truth of the plea must, in the absence of a valid agreement to proceed otherwise, be ascertained by a jury. State v. Priebnow, 16 Neb. 131 (19 N. W. 628). [The language, "in the absence of a valid agreement to proceed otherwise," disapproved in Arnold v. State, 38 Neb. 752; 57 N. W. 378].

177. (1894.) The prosecuting attorney may interpose a demurrer to a plea in bar offered under section 449 of the cdiminal code by a prisoner indicted for a felony, and have the judgment of the court, whether the facts stated in such plea are sufficient, if true, to prevent the trial of the prisoner for the crime for which he stands indicted and arraigned; but where the plea in bar is good, then the issues raised by it, and the state's reply thereto, must, and can only, be tried by a jury, and it is beyond the power of the state's attorney and prisoner, by agreement, to substitute another tribunal than the one prescribed by statute for the trial of such issues. The law is designed for the protection of the state as well as the prisoner, and its mandates cannot be evaded by contract, nor can a prisoner charged with a felony waive the right to a jury trial of such issues. Arnold v. State, 38 Neb. 752 (57 N. W. 378).

178. (1906.) Where a plea in abatement in a criminal prosecution presents questions of law only, it is proper for the trial court to determine such questions without the intervention of a jury. Stetter v. State, 77 Neb. 777 (110 N. W. 761).

Evidence.

179. (1894.) The state cannot deprive the accused of his right to a trial upon a plea in bar by introducing evidence tending to controvert the facts therein alleged in connection with a demurrer to the plea. Smith v. State, 42 Neb. 356 (60 N. W. 585).

180. (1903.) Waiving a preliminary examination in a misdemeanor case cures all defects in the warrant upon which a defendant is arrested; and where one of the grounds of a plea in abatement is a defect in the warrant, and the state, by denial, joins issue thereon, it is incumbent upon the defendant, in order to sustain his plea, to show that he has not waived his preliminary examination. Everson v. State, 4. Unof. 109 (93 N. W. 394).

181. (1903.) Where a defendant files a plea in abatement to some of the counts in an information, in which he alleges that he has never had a preliminary examination thereon, and the state denies the facts stated in the plea, he must establish such facts by competent evidence or his plea will be overruled. Everson v. State, 4 Unof. 109 (93 N. W. 394).

Plea of limitation.

182. (1895.) The defendant in a criminal prosecution may avail himself of the defense of the statute of limitations under a plea of not guilty. Boughn v. State, 44 Neb. 889 (62 N. W. 1094).

Plea of former jeopardy.

183. (1897.) A plea of former jeopardy should set out the the record including the indictment and acquittal or conviction and the statements of fact as to the identity of the person acquitted or convicted and the offense of which he was acquitted or convicted. Davis v. State, 51 Neb. 301 (70 N. W. 984).

184. (1889.) A plea of former acquittal, in which defendant alleged that, at the May, 1887, term of said court, the county attorney of said county presented his information against her for the same offense with which she now stands charged; that she was duly arraigned in said court on said information, and plead not guilty thereto; that thereupon a jury was duly impaneled and sworn in said cause, and the evidence on the part of the state as well as the defense was all introduced and submitted to said jury; that the jury was thereupon instructed by the court, and that thereupon the jury, in charge of a bailiff of said court, retired to deliberate upon their verdict, and that after said jury had been out a space of twenty hours, and no more, without agreeing on a verdict, they were brought into court, when said jury were discharged by the court without agreeing on a verdict,

and without disagreeing, or any other special cause, there being no special necessity for discharging said jury; that defendant then and there objected and protested; is good as against a general demurrer. Conklin v. State, 25 Neb. 784 (41 N. W. 788).

185. (1889.) An indictment was returned into the district court by the grand jury, charging plaintiff in error with four separate violations of the liquor law of the state. He was placed upon trial under three counts in the indictment. Before entering

upon the trial he filed his special plea in bar, alleging that the indictment on file consisted of four counts; that upon arraignment he plead not guilty to each of the counts thereof, when he was placed upon trial and the jury empaneled and sworn to try the issue thus joined; that the county attorney, over his objection and protest, then elected to proceed with the trial under but one of the counts of the said indictment; that upon said trial a verdict of not guilty was returned by the jury, when he was discharged by the court. To this plea the county attorney interposed a general demurrer, which was sustained by the district court. Held, Error, since the plea was sufficient to present an issue which should have been joined. Murphy v. State, 25 Neb. 807 (41 N. W. 792).

186. (1897.) Where the prisoner, after a plea of not guilty and without withdrawing, or requesting to withdraw such plea, filed a plea of "former jeopardy" which was neither signed nor sworn to by the prisoner, such plea in bar was invalid; and the state was under no obligation to demur or reply to it, and that the court was justified in disregarding it and, on its own motion, striking it from the files. Davis v. State, 51 Neb. 301 (70 N. W. 984).

187. (1897.) An invalid plea in bar on the grounds of former jeopardy, may be treated as a motion to discharge accused. Davis v. State, 51 Neb. 301 (70 N. W. 984).

188. (1898.) Where the allegations of a plea in bar, liberally and fairly construed, substantially state that the prisoner has previously, by a court having jurisdiction, had a judgment of acquittal, the truth of the averments of the plea must be determined by a jury. Bush v. State, 55 Neb. 195 (75 N. W. 542).

189. (1899.) A plea in bar need not be interposed to call to the attention of the court matters of record, which show that

the accused was duly acquitted in the same court, in the same case of the identical charge upon which it is proposed to try him again. George v. State, 59 Neb. 163 (80 N. W. 486).

Plea of want of preliminary examination.

190. (1887.) Question of want of preliminary examination must be raised by plea in abatement, Cowan v. State, 22 Neb. 519 (35 N. W. 405).

191, 192. (1894.) Objection by an ac cused on the ground that there has been no preliminary examination for the crime charged should be by a plea in abatement. Hill v. State, 42 Neb. 503 (60 N. W. 916); (1902) Reed v. State, 66 Neb. 184 (92 N. W. 321).

193. (1903.) By the interposition of a plea in abatement after the filing of an information against one accused of a felony the question may properly be determined as to whether a preliminary examination has been had or waived. Jahnke v. State, 68 Neb. 154 (94 N. W. 158). Plea of not guilty.

194. (1896.) A plea of the general issue raises the question of the guilt or innocence of accused, of the principal crime charged, and also of the lesser ones included thereon, and hence the jury should be instructed as to the lesser crimes, although not requested to do so by defendant. Pjarrou e. State, 47 Neb. 294 (66 N. W. 422).

Joinder with other pleas.

195. (1877.) When a defendant pleads not guilty, he cannot in connection with such plea, by other pleas raise questions in respect to a former conviction. Marshall v. State, 6 Neb. 120 (29 Am. Rep. 363).

Withdrawal.

196. (1871.) If the defendant plead "not guilty," and afterwards file his mo tion to quash and plea in abatement and they are determined, and the trial proceeds without a renewal of the plea of "not guilty," the presumption is that it, as first interposed, was not withdrawn. Burley v. State, 1 Neb. 385.

197. (1896.) Where a plea to the general issue has been entered and has not been withdrawn, a plea in abatement need not be entertained. Korth v. State, 46 Neb. 631 (65 N. W. 792).

198. (1897.) There can never properly be more than one issue before the court in

a criminal case at one time, and so long as the plea of not guilty remains on the record, a plea in bar is improper, and the state is under no necessity of replying or demurring to such plea, and the court, on its own motion, may disregard it. Davis v. State, 51 Neb. 301 (70 N. W. 984).

199. (1897.) If a prisoner, after a plea of not guilty, tenders a lawful and proper plea in bar, stating facts which have occurred or come to his knowledge since the entry of his plea of not guilty, and which facts, if true, entitle him to discharge, then it is the duty of the court to permit the prisoner to withdraw his plea of not guilty and file such plea in bar. Davis v. State, 51 Neb. 301 (70 N. W. 984).

200.. (1899.) A plea in bar may be disregarded, if presented while the plea of not 'guilty remains on the record. George v. State, 59 Neb. 163 (80 N. W. 486).

entertains

202. (1399.) Where a court and considers the merits of a plea in bar, without a formal withdrawal of the plea of not guilty, the plea of not guilty will be considered as constructively withdrawn. George v. State, 59 Neb. 163 (80 N. W. 486). 203. (1899.) Where a court entertains and considers the merits of a plea in bar, without a formal withdrawal of the plea of not guilty, it is, at most, a mere irregularity, and the action of the court thereon may be the subject of review. George v State, 59 Neb. 163 (80 N. W. 486).

X. EVIDENCE.

In prosecution for particular crimes, see particular topics.

Competency of insurance policy in prosecution for arson, see Arson, § 3.

Information in extradition as evidence, see Extradition, § 10.

Proof of existence of house of prostitution, see Disorderly Houses, §§ 2, 3.

Taking depositions, see Depositions, § 19. Variance between preliminary complaint and indictment, see Indictment and Information, $$ 80-82.

A. Judicial Notice, Presumptions, and Burden of Proof.

Presumption from possession property, see Burglary, §§ 23-25.

of stolen

Presumption of violation of liquor laws from possession of liquor, see Intoxicating Liquors, §§ 284-290.

Presumption as to larceny, see Larceny,

$ 50.

Judicial notice.

204. (1894.) Courts will not, as a rule, take notice of municipal ordinances, unless required to do so by special charter or general law. Foley v. State, 42 Neb. 233 (60 N. W. 574).

205. (1894.) Upon trial of a person for the violation of a city ordinance the police court may take notice of the ordinance; and upon trial de novo of an appeal from a judgment of conviction the district court may take notice of whatever facts the lower court could have noticed judicially. Foley v. State, 42 Neb. 233 (60 N. W. 574).

206. (1896.) Where a city or village is incorporated by a special act of the territorial legislature, the courts will take judicial notice of such incorporation, in case the legislautre has in said act declared it to be a public law. Hornberger v. State, 47 Neb. 40 (66 N. W. 23).

207. (1902.) The courts of this state will take judicial notice that beer is an intoxicant. Sothman v. State, 66 Neb. 302 (92 N. W. 303).

208. (1907.) Municipal courts will take judicial notice of the ordinances of the city, and on an appeal therefrom to the district court from a conviction of a violation of a city ordinance the latter court will upon a trial de novo take notice of whatever facts the former court was required to notice judicially before, the removal of the cause. Steiner v. State, 78 Neb. 147 (110 N. W. 723).

Presumptions.

Presumption as to adultery, see Adultery, §§ 11-13.

209. (1893.) In the absence of pleadings and proof, it will be presumed that the laws of a sister state are the same as our own. Bailey v. State, 36 Neb. 808 (55 N. W. 241).

210. (1895.) Insanity of accused at the time he committed the homicide will not be conclusively presumed from a previous order of the commissioners of insanity finding that he is a fit subject for treatment in an insane asylum. Pflueger v. State, 46 Neb. 493 (64 N. W. 1094).

sumption possessing no inherent probative force is met by opposing evidence, it is entirely destroyed and ceases to be a factor in the trial, unless it be required to turn -an evenly balanced scale. Reynolds v. State, 58 Neb. 49 (78 N. W. 483).

212. (1902.) When the legislative thought is cast in the mould of the criminal law, it will be presumed, nothing appearing to the contrary, that the remedies contemplated were those generally used in courts exercising criminal jurisdiction. State Missouri P. R. Co., 64 Neb. 679 (90 N. W. 877).

- Innocence.

บ.

213. (1877.) In the absence of evidence to the contrary the law presumes everyone innocent. And this legal presumption of innocence is a matter of evidence, to the benefit of which the party accused is entitled. Garrison v. State, 6 Neb. 274; (1881) Olive v. State, 11 Neb. 1 (7 N. W. 444) (1888) Long v. State, 23 Neb. 33 (36 N. W. 310).

214. (1897.) One accused of a crime is presumed to be innocent, and the presumption begins with the accusation and continues until the state has established his guilt beyond a reasonable doubt. Davis v. State, 51 Neb. 301 (70 N. W. 984); (1900) Williams v. State, 60 Neb. 526 (83 N. W. 681).

Identity of persons.

215. (1899.) Identity of name ordinarily affords a presumption of identity of person; and where the name of the victim of a criminal assault is the same in two counts of an information, the law presumes that the reference in both counts is to the same person. Dunn v. State, 58 Neb. 807 (79 N. W. 719).

Intent.

216. (1883.) It is a presumption of law, applicable in criminal trials, that a person intended to do that which he voluntarily and wilfully did in fact to. Parrish v. State, 14 Neb. 60 (15 N. W. 357).

Failure of defendant to testify. 217. (1883.) The fact that a prisoner does not testify in his own behalf will not operate to his disadvantage; but if he testify, and fail to controvert in any way what has been said by witnesses against him, concerning a fact within his own personal knowledge, it will be taken as an ad

mission that their testimony is true. Comstock v. State, 14 Neb. 205 (15 N. W. 355). Burden of proof.

Burden of proving drunkenness as defense to larceny, see Larceny, §§ 118, 119.

218. (1877.) Where the accused sets up no defense of distinct and independent facts, but relies upon the plea of not guilty, the burden of proof is on the state to satisfy the jury of his guilt. Garrison v. People, 6 Neb. 274.

219. (1894.) In criminal prosecutions the burden of proof never shifts, but, as to all defenses which the evidence tends to establish, rests upon the state throughout; hence a conviction can be had only when the jury are satisfied, from a consideration of all the evidence, of the defendant's guilt beyond a reasonable doubt. That rule ap plies not alone to the case as made by the state, but to any distinct, substantive defense which may be interposed by the accused to justify or excuse the act charged. Gravely v. State, 38 Neb. 871 (57 N. W. 751).

220. (1898.) The burden of proof in a criminal action is on the state and does not shift to defendent. Davis v. State, 54 Neb. 177 (74 N. W. 599); (1990) Williams v. State, 60 Neb. 526 (83 N. W. 681).

221. (1902.) It will not be presumed in any case that the law has been violated: every alleged violation must be established by competent proof. State, ex rel. Freeman, v. Scheve, 65 Neb. 853, 876 (93 N. W. 169).

Insanity.

222. (1876.) Where in a criminal case the accused relies upon insanity as a defense, the burden of proof is on the prose cution to show sanity. Wright v. State. 4 Neb. 407.

223. (1886.) Where in a criminal case the accused relies upon insanity as a de fense, and there is testimony tending to prove such insanity, the burden of proof is on the prosecution to show sanity. Pab lard v. State, 19 Neb. 609 (28 N. W. 271).

224. (1891.) When insanity is relied upon as a defense and testimony has been introduced which rebuts the presumption that the defendant was sane, the burden is upon the state to establish by the evidence beyond a reasonable doubt that the accused was sane at the time of committing the act charged. Furst v. State, 31 Neb. 403 (47 N. W. 1116).

225. (1898.) To cast on the state the burden of proving sanity it is only requisite that there be some evidence tending to prove insanity, and it is not necessary that there must first be evidence sufficient to raise a reasonable doubt. Snider v. State, 56 Neb. 309 (76 N. W. 574).

Alibi.

226. In a criminal case it is error to instruct that the burden of proof is upon the accused to establish an alibi by a preponderance of the evidence. (1896) Casey v. State, 49 Neb. 403 (68 N. W. 643); (1897) Beck v. State, 51 Neb. 106 (70 N. W. 498).

227. (1898.) The burden of proof is not on accused to establish an alibi. Peyton v. State, 54 Neb. 188 (74 N. W. 597).

B. Facts in Issue and Relevant to Issue, and Res Gestae.

Proof of corpus delicti in larceny, see Larceny, § 84.

In general.

228. (1881.) A witness for the state who had testified, on his direct examination, to having seen a person he took for one of the prisoners near the place of the murder, on the evening preceding the night of its commission, was asked, on cross-examination, how long he had known him, and answered, "Since he has resided in Plum Creek." He was then asked, "How long has he resided there?" and "Have you known him well since he lived there?" These questions were both excluded on the ground of immateriality. Held, Error. Olive v. State, 11 Neb. 1 (7 N. W. 444).

229. (1899.) Evidence which does not tend to establish the guilt or innocence of the defendant of the crime charged should be excluded, even though its admission might afford the jury a remote "basis for a guess." Kastner v. State, 58 Neb. 767 (79 N. W. 713).

230. (1901.) It is error to exclude evidence the legitimate tendency of which is to put an innocent complexion upon inculpatory circumstances proven by the state; the weight of such evidence is for the jury. Burlingim v. State, 61 Neb. 276 (85 N. W. 76).

231. (1901.) The exclusion of testimony relating to a collateral fact and corrobating the defense, is not error where its relation to the main fact is uncertain. Smith v. State, 61 Neb. 296 (85 N. W. 49).

232. (1901.) On the trial of a criminal

case every hypothesis that implies the defendant's guilt is pertinent, and any evidence fairly tending to sustain such hypothesis is relevant to the issue. Jerome v. State, 61 Neb. 459 (85 N. W. 394).

233. (1902.) It is not reversible error to permit a witness to testify in regard to the means which he employed to identify property which he had been instructed to seize for the purpose of being used as evidence in a criminal case. Russell v. State, 66 Neb. 497 (92 N. W. 751).

234. (1903.) The word "evidence," in its technical meaning and common acceptation, includes all the means by which any fact in dispute at a judicial trial is established or disproved. O'Brien v. State, 69 Neb. 691 (96 N. W. 649).

235. (1905.) One of two persons jointly charged with the commission of a crime cannot, by being accorded a separate trial, prevent the state from introducing evidence, otherwise competent, to prove his guilt, because such evidence also tends to establish the guilt of his codefendant. Krens v. State, 75 Neb. 294 (106 N. W. 27). Attempt to suppress evidence.

236. Evidence is relevant which shows that the accused has threatened or assaulted a witness, has endeavored to prevail on him to abscond, has procured his absence, has endeavored to induce him to testify falsely, or has concealed the whereabouts of such witness from the prosecution; and such conduct on the part of an accused person is an incriminating circumstance to be weighed by the jury in determining the question of his guilt. (1902) Hubbard v. State, 65 Neb. 805 (91 N. W. 869); (1904) Blair v. State, 72 Neb. 501 (101 N. W. 17); (1904) Woodruff v. State, 72 Neb. 815 (101 N. W. 1114).

237. (1907.) Evidence that the defendant in a criminal case has hired or procured a witness for the prosecution to leave the state and not appear at the trial as a witness against him is competent as an incriminating circumstance tending to establish his guilt. Crowell v. State, 79 Neb. 784 (113 N. W. 262).