PART III.

CRIMINAL CODE.

PART FIRST-CRIMES AND OFFENSES.

CHAPTER I.-ACCESSORIES IN FELONY.

6649 SECTION 1. [Aiding and abetting felony.] If any person shall aid, abet or procure any other person to commit any felony, every person so offending shall, upon conviction thereof, be imprisoned in the penitentiary for any time. between the respective periods for which the principal offenders could be imprisoned for the principal offense; or, if such principal offender would on conviction be punishable with death, or be imprisoned for life, then such aider, abettor, or procurer shall be punished with death, or be imprisoned for life, the same as the principal offender would be. [G. S., § 1, 719.]

6650 SEC. 2. [Accessories after the fact.] An accessory after the fact is a person who, after full knowledge that a felony has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. Any person being found guilty of being an accessory after the fact shall be imprisoned in the jail of the county for any term not exceeding two years, and fined in a sum not exceeding five hundred dollars, in the discretion of the court, to be regulated by the circumstances of the case and the enormity of the crime.

CHAPTER II.-HOMICIDE AND FŒTICIDE.

6651 SEC. 3. [Murder, first degree.] If any person shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another; or if any person, by wilful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction and execution of any innocent person, every person so offending shall be deemed guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or shall be imprisoned in the penitentiary during life in the discretion of the jury. [Amended 1893, chap. 44.]

NOTE. "An act to establish a criminal code." Passed March 5. Took effect Sept. 1, 1873. G. S., 719. Provis ions relative to costs are embraced in title and are constitutional. 10 Neb., 300.

CHAP. I. Facts showing that accused was accessory only, whether before or after the fact, will not warrant conviction under an indictment for murder. 8 Neb., 82. Acting as agent of another in commission of offense, no excuse or justification. 21 Neb., 595. Words "requested, advised, and incited," instead of " aid, abet, or procure," used in an instruction to jury, sustained. 23 Id., 45. Sec. 1 is merely declaratory of the common law. 42 Id., 505. No accessories in misdemeanor. Where intent is essential element of crime, accessory must have knowledge of intent. 43 Id., 2.

CHAP. II. Malice defined; premeditation and deliberation defined. 6 Neb., 143. 23 Id., 755. 24 Id., 623, 843. Statutory distinction in degrees. 6 Id., 139. 9 Id., 303. Murder in first degree; evidence must show that accused perpetrated act purposely; that he did it with intent to kill, and of deliberate and premeditated malice. 6 Id., 140. 14 Id., 568. 15 Id., 213. 24 Id., 623. Verdict fixing degree of criminality is conclusive. 9Id., 248. Act of killing required to be "done with reflection" and "conceived beforehand." 14 Id., 569. Evidence, held, insufficient to show deliberation, 6 Id., 141. 14 Id., 571. Conviction may be had for murder in second degree or manslaughter. 4 Id., 552 Murder in second degree; where fact of killing is shown, and no explanatory circumstance is shown, malice is presumed and degree is established. 5 Id., 384. 6 Id., 140. Murder in second degree; malice implied only in cases where killing alone is shown; where evidence shows all the circumstances by the testimony of eye-witnesses, malice not presumed. 24 Id., 843. A malicious killing, although done upon a sudden

(1303)

6652 SEC. No. 3a. [Repeal-Saving clause.] That section No. three (3) of the criminal code of the state of Nebraska, known as section No. fifty-five hundred seventy-nine (5579) of the consolidated statutes of 1891, be and the same is hereby repealed. Provided, however, That such repeal shall not be construed to apply to any offenses committed prior to the taking effect of this act, nor shall the same effect any convictions or prosecutions held under said original section. [1893, chap. 44, § 2.]

6653 SEC. 4. [Murder, second degree.] if any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree; and on conviction thereof, shall be imprisoned in the penitentiary not less than ten years, or during life, in the discretion of the court.

6654 SEC. 5. [Manslaughter ] If any person shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter; and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years nor less than one year.

6655 SEC. 6. [Foticide-Homicide in committing same. Any physi cian or other person who shall administer, or advise to be administered, to any preg nant woman with a vitalized embryo, or foetus, at any stage of utero-gestation, any medicine, drug, or substance whatever, or who shall use or employ, or advise to be used or employed, any instrument or other means with intent thereby to destroy such vitalized embryo, or foetus, unless the same shall have been necessary to preserve the life of the mother, or shall have been advised by two physicians to be necessary for such purpose, shall in case of the death of such vitalized embryo, or fœtus, or mother, in consequence thereof, shall be imprisoned in the penitentiary not less than one nor more than ten years.

CHAPTER III.-FIGHTING BY AGREEMENT.

6656 SEC. 7. [Prize fighting.] If any person shall actually engage as a principal in any premeditated fight or contention, commonly called a prize fight, every person so offending shall be imprisoned in the penitentiary not less than one year nor more than ten years, and pay the costs of prosecution.

quarrel and in the heat of passion, is at least murder in the second degree. 15 Id., 214. Evidence must show that prisoner either personally committed the deed or else present aiding and abetting therein; facts showing him to be accessory only will not warrant conviction under an indictment for murder. 8 Id., 82. Malice presumed where no considerable provocation appears. 5 Id., 384. 14 Id., 569. Persons may resist an unlawful attempt at arrest, and if necessary, rather than submit, he may lawfully kill the person making it. 14 Id., 572. Arrest may be made by private person without warrant. 16 Id., 623. Manslaughter; failure of jury to negative the fact that the crime was of higher grade no ground for reversal of judgment. 6 Id., 343. Testimony tending to show that act was committed in self-defense must be submitted to the jury, 9 Id., 165. Self-defense: general rules. 24 Id., 843. It must appear that accused endeavored by all reasonable means, before giving the fatal blow, to escape from scene of difficulty. 14 Id., 67. If accused have mental capacity to distinguish right from wrong in respect to particular act charged, he is responsible. 4 Id., 409. 11 Id., 538. 14 Id., 577. Where on a trial for murder the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and on his motion a new trial is granted, the effect of granting a new trial is to set aside the whole verdict and leave the case for retrial upon the same issues as upon the first trial. 18 Id., 77. Evidence tending to lower degree of homicide should be submitted to jury. 18 Id., 407. 24 Id., 843. Ingredients of crime stated; intent must be averred in indictment; indictment examined, and held, insufficient: omission not cured by ordinary formal conclusion. 22 Id., 559. Instructions, copied from instruction numbered nine in 6 Neb., 334, and printed therein at page 336, criticised, and concluding words thereof held unnecessary. 22 Id., 563. Accused relying upon insanity as a defense, burden of proof lies on prosecution to show sanity, 4 Id., 409. 19 Id., 619. Degree of mental unsoundness necessary must be such as to create uncontrollable impulse to do act charged. 4 Id., 409. If accused lack mental capacity to distinguish right from wrong in reference to the particular act complained of, law will not hold him responsible. Id. 11 Id., 538. Temporary insanity, produced by intoxication, does not destroy responsibility, if accused, when sane and responsible, made himself voluntarily drunk. 9 Id., 253. Law requires something more than occasional oddity or hypochondria to exempt accused. 11 Id., 538. Refusal to instruct as to insanity when there is no evidence of it, not error. 11 Id., 414. One of weak mind, but of sufficient capacity to distinguish right from wrong in respect to the particular act charged, is accountable for his acts. 25 Id., 555. Jury may consider intoxication of accused as a circumstance to show that act was not premeditated, and to rebut the idea that it was done in a cool and deliberate state of mind, necessary to constitute murder in the first degree. 4 Id., 289. 9 Id., 252. Degrees distinguished. 6 Neb., 139. 9 Id., 303. 26 Id., 387. Self defense general rule. 24 Id.. 48. Cited 42 Id., 503.

SEC. 5. Killing assailant in revenge. 31 Neb., 240.

6657 SEC. 8. [Aiders and abettors.] If any person shall engage, or be concerned in, or attend any such fight or contention as is described in the last preceeding section, as backer, trainer, second, umpire, assistant, or reporter, every person so offending shall on, conviction, be fined in any sum not less than five dollars nor more than one hundred dollars, and imprisoned in the jail of the county not less than ten days nor more than three months, and pay the costs of prosecution. [Amended 1875, 2.]

6658 SEC. 9. [Dueling.] If any person shall engage in or fight a duel with another, or shall be second to such person who shall fight a duel, or if any person shall, by word or message, letter, or in other way, challenge another to fight a duel, or shall accept a challenge to fight a duel, although no duel be fought, or shall, knowingly, be the bearer of such challenge, or shall advise, prompt, encourage, or persuade any person to fight a duel, or challenge another to fight a duel, whether such duel be fought or not, every person so offending shall be imprisoned in the penitentiary not more than ten years, nor less than one year, and shall forever after be incapable of holding any office of honor, profit, or trust within this state; Provided, however, If death ensue from such duel, the person or persons concerned shall be deemed guilty of murder and shall be punished for murder in the first or second degree (as the case may be), as is provided in this act, anything in this section to the contrary notwithstanding.

6659 SEC. 10. [Affray.] If any two persons shall agree and wilfully fight or box at fisticuffs, the persons so offending shall be deemed guilty of an affray, and, upon conviction thereof, shall be fined, each, in a sum not exceeding fifty ($50) dollars, or be imprisoned in the county jail not exceeding ten days, at the discretion of the court. [Amended 1893, chap. 45.]

CHAPTER IV.-VIOLENCE TO PERSONS, NOT RESULTING IN DEATH.

6660 SEC. 11. [Rape upon daughter or sister.] If any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person so offending shall be deemed guilty of a rape, shall be imprisoned in the penitentiary during life.

6661 SEC. 12. [Rape upon other female.] If any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and against her will; or if any male person, of the age of eighteen years or upwards, shall carnally know or abuse any female child under the age of eighteen years, with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, every such person so offending shall be deemed guilty of a rape, and shall be imprisoned in the penitentiary not more than 20 nor less than 3 years. [Amended 1887, chap. 105. 1895, chap. 74.]

SEC. 8. Act of 1875 has no repealing clause. Former law, fine "not less than fifty dollars, nor more than five hundred dollars." SEC. 11. Amount of resistance. Corroboration of prosecutrix. 39 Neb., 252. SEC. 12. Rape defined. 6 Neb., 282. 11 Id., 277. 14 Id., 207. Assault with intent to commit; prosecutrix competent witness; indictment; joinder of counts. 6 Neb., 282. Evidence: statements of prosecutrix; must resist to extent of her ability. 11 Neb., 279. 19 Id., 333. Proof of emission not necessary; presumed from fact of penetration. 14 Neb., 208. Failure of prosecutrix to call expert testimony to the fact of penetration does not weaken other competent evidence on that point. Id., 207. Child is competent to testify as to the fact of its parentage. Id., 207. Evidence in cases stated. 9 Neb, 65. 15 Id., 386. Change of venue allowed in case stated. 16 Neb., 389. Where accused testifies and explicitly denies accusation, there must be testimony corroborating prosecutrix to warrant conviction. 9 Neb., 65. 19 Id., 335. Not essential to conviction that prosecutrix should be corroborated by testimony of other witnesses as to the particular act constituting offense. Sufficient if she be corroborated as to material facts and circumstances which tend to support her testimony, and for which, together with her testimony as to principal fact, inference of guilt may be drawn. 22 Neb., 333. An instruction that "there must be an assault and also an accompanying intent, and this intent may be gathered or inferred from any circumstances attending the commission of the alleged crime tending in any manner to show such intent in the mind of the defendant at the time," is erroneous. 19 Neb., 731. To warrant conviction in such case the circumstances, when taken together, must be of so conclusive a nature as to show intent beyond reasonable doubt. Id., 731. Not necessary to prove that prosecutrix has not reached age of puberty, if it be shown that she is under fifteen years of age. 25 Neb., 41. Not necessary to be against will of child. 31 Id., 247. Instruction cautioning jury against prejudice and as to resistance. 27 Neb., 90. 36 Id., 17. "Abuse" synonymous with "ravish." 38 Id., 862. Under first clause age need not be alleged. Aliter under second. 40 Id., 320. Fact that accused intended to have carnal knowledge with consent only is immaterial. 43 Id., 30.

6662 SEC. 13. [Robbery.] If any person shall forcibly, and by violence, or by putting in fear, take from the person of another any money or personal property, of any value whatever, with the intent to rob or steal, every person so offending shall be deemed guilty of robbery, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than fifteen nor less than three years.

6663 SEC. 14. [Felonious assault.] If any person shall assault another with intent to commit a murder, rape, or robbery upon the person so assaulted, every person so offending shall be imprisoned in the penitentiary not more than fifteen nor less than two years.

6664 SEC. 15. [Maiming and disfiguring.] If any person shall voluntarily, unlawfully, and on purpose cut or bite the nose, lip or lips, ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, ear or lip, cut or disable any limb or member of any person, with intent to murder, kill, maim, or disfigure such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years nor less than one year.

6665 SEC. 16. [Shooting and stabbing with intent to kill.] If any person shall maliciously shoot, stab, cut, or shoot at any other person, with intent to kill, wound, or maim such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years nor less than one year.

6666 SEC. 17. [Assault and battery-Menacing threat.] If any person shall unlawfully assault or threaten another in a menacing manner, or shall unlawfully strike or wound another, the person so offending shall, upon conviction thereof, be fined in any sum not exceeding one hundred ($100) dollars, or impris oned in the jail of the county not exceeding three months, in the discretion of the court, and shall, moreover, be liable to the suit of the party injured. [1875, 2. Amended 1893, Chap. 45.]

6667 SEC. 17a. [Provoking assault.] That any person who shall intentionally provoke or attempt to provoke an assault upon himself or another, by the uttering of grossly vile and insulting epithets applied to the assaulting party, or one so tempted to commit an assault, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined in any sum not exceeding ten ($10) dollars, or be imprisoned in the county jail not exceeding ten days. [1887, chap. 102.]

6668 SEC. 176. [Assault with intent to commit bodily injury.] That if any person assault another with intent to inflict a great bodily injury, he shall be punished, on conviction thereof, by imprisonment in the penitentiary for not less than one (1) year nor more than five (5) years. [1889, chap. 34.]

6669 SEC. 18. [Kidnapping.] Any person or persons who shall kidnap or forcibly or fraudulently carry off or decoy out of this state any person or persons,

Person

SEC. 13. Property must be taken by force or violence and with intent to rob or steal. 19 Neb., 652. may be convicted of larceny. Id., 33. Id., 354. Taking from personal possession or protection sufficient. 42 Id.,

505.

SEC. 14. Indictment should charge the assault to have been made "purposely and maliciously." 4 Neb., 552, Evidence of physicians and surgeons. 5 Neb., 417. Intent an essential and material ingredient. Id. Is but one offense; general verdict good. 5 Neb., 418. Instructions on questions of intent. 4 Neb., 553. Cited 31 Id., 247. Proof of intent essential. 61 N. W. R., 730. Deadly weapon discussed. 61 N. W. R., 628.

SEC. 16. Charging "intent to kill" with "intent to wound;" prosecutor not required to elect on which count he will proceed. 8 Neb., 486. In indictment for shooting with intent to kill the word "maliciously" was omitted, but it was alleged that act was "unlawfully, wilfully, purposely, and feloniously" done; held, that these words included full signification of word "maliciously," and that verdict would not be set aside or indictment quashed as not stating an offense. 17 Neb., 224. Accused may be convicted of assault and battery. 43 Neb., 2. SEC. 17. Principals defined. 11 Neb., 259. Justice of the peace may impose fine or sentence of imprisonment, but cannot impose both fine and imprisonment. 16 Neb., 193. Identical words in meaning are sufficient. 36 Id., Prosecution must be brought within a year. 62 N. W. R., 300.

160.

1887.

SEC. 174. "An act to punish the giving provocation for assault." Laws, 1887, chap. 102. Took effect July 1, SEC. 176. Sec. 1 of "An act to provide for the punishment of persons guilty of an assault upon another with intent to inflict great bodily injury, and for the punishment of persons guilty of an assault upon another person, with intent to kill the person assaulted." (Laws, 1889, 'chap. 34, took effect July 1, 1889), constitutional. 31 Neb., 674. 34 Id., 689. Charging offense in statutory terms, not stating means with which, sufficient. "Great bodily injury" defined. 43 Neb., 30. Sec. 2 of same act is unconstitutional. 31 Neb., 674.