sent.-Presho State Bank v. Northwestern 1. NATURE AND ELEMENTS OF CRIME Milling Co., 560.
(D) Rules of Decision, Adjudications, Opinions, and Records.
92 (Mich.) Expression of opinion as to weight of evidence upon reversal of directed verdict held obiter dictum.-Kosnicki v. Pere Marquette Ry. Co., 493.
92 (Wis.) Decision by court of last resort on correlated subject-matter is not mere obiter dictum, but is at least judicial dictum.-Chase v. American Cartage Co., 598.
Supreme Court's statement that it would no longer recognize rule in previous opinion which court had been asked to extend as a valid rule held not obiter dictum.-Id.
Decision of court of last resort of question germane to controversy is not dictum.-Id.
102(1) (N.D.) Statute may not be held unconstitutional unless four Supreme Court judges so decide.-Wilson v. City of Fargo,
116(4) (Neb.) Court at subsequent term may amend or correct records to conform to facts. Amos v. Eichenberger, 330.
AND DEFENSES IN GENERAL.
9 (Wis.) Murder is a common-law offense, of which statute is merely declaratory.-Ex parte Carlson, 722.
III. PARTIES TO OFFENSES.
59(5) (Wis.) One aiding and abetting is guilty as principal.-Ex parte Carlson, 722. prosecuted as a principal.-Id. Party present, aiding and abetting to be
81 (Wis.) Accessory must be prosecuted as such.-Ex parte Carlson, 722.
84(1) (Iowa) New provision in statute conferring jurisdiction to try escape held not an "ex post facto law."-State v. Wilson, 886. 99 (Wis.) If complaint, indictment, or in- formation is invalid, court is without jurisdic- tion.-Ex parte Carlson, 722.
(A) Place of Bringing Prosecution.
116(5) (S.D.) Records cannot be correct-112(1) (Minn.) Defendant taking order for ed by interlineation and mutilation of files.- State v. Nystrom, 750.
202 (5) (Iowa) Proceedings in probate not triable de novo.-Caldwell v. Caldwell, 58.
C. O. D. shipment of liquor from another county may be prosecuted in county where order was taken.-State v. Brown, 946.
(A) Judicial Notice, Presumptions, and Burden of Proof.
315 (Minn.) Proof that plaintiff was a manager at one date is not proof that he was a manager at preceding date.-State v. Brown, 946.
(B) Facts in Issue and Relevant to Is- sues, and Res Gestæ.
338(1) (lowa) Not proper to admit evi- dence not relevant to defendant's guilt.-State v. Banoch, 436.
nent to issue.-State v. Potter, 919. 338(1) (Iowa) Evidence must be perti-
202 (5) (Wis.) Probate court's decree may be annulled when shown to be without founda-338(1) (Iowa) Logically relevant facts are tion in law or in fact.-In re Reeve's Guard- admissible; "relevancy."-State v. McDougal, ianship, 736.
VI. COURTS OF APPELLATE JURISDIC-
(A) Grounds of Jurisdiction in General.
359 (Iowa) Proof tending to incriminate another must be confined to substantive facts. -State v. Banoch, 436.
363 (Iowa) Res gestæ cannot be deter- 204 (N.D.) Supreme Court under its pow-mined by fixed measure of time or distance.- er of "superintending control" may control State v. Brooks, 46. course of litigation so as to prevent injustice. Statements to be part of res gestæ must not -State v. District Court of Stutsman County, be narrative of past occurrence.-Id.
Self-serving declaration may be admissible if part of the res gesta.-Id.
364 (2) (Iowa) Statements of accused not admissible as res gestæ unless excluding pre- sumption of premeditation and fabrication.- State v. Brooks, 46.
364 (6) (lowa) Defendant's statements on returning home after shooting deceased held not res gestæ.-State v. Brooks, 46.
365(2) (Minn.) Defendant's statement of his commission of similar crimes held not a part of res gestæ.-State v. Friend, 241.
(C) Other Offenses, and Character of Ac- cused.
≈369 (5) (Iowa) Evidence of forged indorse- ment held admissible in prosecution for larceny of notes.-State v. Potter, 919.
369(8) (Minn.) Defendant's statement of his commission of similar crimes held inadmis- sible as evidence of other disconnected and in- dependent crimes.-State v. Friend. 241.
(D) Materiality and Competency in Gen- eral.
See Assault and Battery, 92; Burglary; Embezzlement; Grand Jury; Homicide; In-395 (Mich.) Whisky falling from defend- dictment and Information; Larceny; Pardon; ant's person, in scuffle with officer seizing him Perjury; Rape, 40-59; Seduction, 34 to obtain it, not admissible.-People v. Mar-
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
(E) Best and Secondary and Demonstra- 730(2) (Iowa) Error in opening statement of prosecuting attorney to jury held cured by admonition of court.-State v. Christianson, 462.
398 (1) (Iowa) Evidence must be the best. -State v. Potter, 919.
400 (7) (Iowa) Parol evidence admissible to show contents of stolen notes if lost.-State v. Potter, 919.
(F) Admissions, Declarations, and Hear-
742(2) (Neb.) Weight of accomplice's tes- timony is for the jury.-Dyson v. State, 984. (G) Necessity, Requisites, and Sufficiency
413(1) (Iowa) Accused's self-serving dec- larations not admissible.-State v. Brooks, 46. Defendant's statements on returning home 770 (2) (Iowa) Defendant entitled to have after shooting deceased held self-serving.-Id. theory explained to the jury.-State v. Brooks, (J) Testimony of Accomplices and Code- 775(6) (1owa) Instruction on alibi held not erroneous.-State v. Banoch, 436.
780 (1) (Neb.) Directing jury to cautious- consider testimony of accomplice proper.- Dyson v. State, 984.
507 (7) (Minn.) In prosecution for statu- tory rape, the prosecutrix is not an "accom-ly plice" within the statute requiring corrobora- tion.-State v. Dahl, 580.
510 (Neb.) Conviction may rest on accom- plice's uncorroborated evidence and other testi- mony satisfying beyond reasonable doubt. Dyson v. State, 984.
535(1) (Minn.) Confession will not war- rant conviction unless corroborated by inde- pendent evidence of corpus delicti.-State v. Wylie, 707.
(L) Evidence at Preliminary Examination or at Former Trial.
800(4) (Iowa) Ordinarily sufficient to de- fine crime in language of statute.-State v. Banoch, 436.
814(3) (Minn.) It is not error to refuse instructions not applicable to the facts.-State v. Ford, 812.
815(4) (Neb.) Instruction omitting ele- ments of offense erroneous.-Altis v. State, 524.
(H) Requests for Instructions. 825(3) (Minn.) Plaintiff could not object to instruction on self-defense in absence of request for more specific instruction.--State v. Miller, 803.
543(1) (Mich.) Testimony of absent wit-829(1) (Minn.) It is not error to refuse ness on preliminary trial held admissible where instructions on matters covered by others.- witness has disappeared.-People v. Schepps, State v. Ford, 812. 508.
(M) Weight and Sufficiency. 552(2) (Minn.) Circumstances relied on for conviction must be proved, and not presumed.- State v. Wylie, 707.
556 (Iowa) State bound by evidence it in- troduces.-State v. Potter, 919.
561 (1) (Iowa) Proof beyond reasonable doubt of every essential ingredient.-State v. Potter, 919.
829(1) (Neb.) Refusal of instruction on matter covered by one given is not error.- Dyson v. State, 984.
836 (Minn.) Defendant not entitled to copy of court's charge before final argument.-State v. Miller, 803.
XIII. MOTIONS FOR NEW TRIAL AND IN ARREST.
919(3) (Minn.) Refusal of new trial for misconduct of prosecuting attorney held not abuse of discretion.-State v. Miller, 142.
561 (2) (Iowa) Indictment must allege ownership of property, and proof must sus-919(5) (Minn.) Objection to argument tain averment beyond reasonable doubt.-State v. Potter, 919.
563 (Iowa) Corpus delicti may be proven by circumstantial evidence.-State v. Kelley,
(B) Course and Conduct of Trial in Gen- eral.
649(4) (Minn.) Refusal to take recess to permit defendant's counsel to confer with his client held not error.-State v. Swan, 581.
656(3) (Minn.) Rebuke of defendant's counsel for asking seemingly impertinent ques- tion of state's witness held too severe.-State v. Jensen, 581.
(C) Reception of Evidence. 678(1) (S.D.) Evidence held to show all acts were one transaction, so that election was unnecessary.-State v. Blair, 961.
980 (2) (Wis.) Where information charges an offense including others on plea of guilty, good practice requires a definite finding as to degree of offense.-Ex parte Carlson, 722.
989 (Wis.) Accused's right to say why sentence should not be pronounced is not a mere formality.-Ex parte Carlson, 722.
XV. APPEAL AND ERROR, AND CER- TIORARI.
683(1) (Neb.) Admission in rebuttal of letter from defendant's wife to defendant held (A) Form of Remedy, Jurisdiction, error.-Porter v. State, 1006.
(E) Arguments and Conduct of Counsel. 720 (2) (Iowa) Inaccuracies in statement of evidence not misconduct in legal sense.- State v. Christianson, 462.
1023 (2) (Iowa) Ruling sustaining directed verdict of acquittal is final though no formal judgment entered.-State v. McDougal, 929.
1024(12) (lowa) No appeal from judg- ment for costs against state in criminal case. State v. McDougal, 929.
721 (5) (Mich.) Prosecuting attorney's statement held not violation of statute forbid- ding comment on defendant's failure to testify. (B) Presentation and Reservation in Low- er Court of Grounds of Review. -People v. Lowrey, 396.
722 (2) (Minn.) In prosecution for statu-1032(1) (Mich.) Assignments attacking in- tory rape, suggestions by prosecutor as to de- fendant's wealth, association with girls, and drinking held improper.-State v. Friend, 241.
formation not considered where defendant pleaded and did not question information be- low.-People v. Sekelyn, 479.
1036(1) (Mich.) Admission of evidence not reviewed when no objection made.-People v. See Constitutional Law, 193. Sekelyn, 479.
1044 (Iowa) Admission of evidence, promise to connect it with defendant, not ground for reversal, in absence of motion to strike.- State v. Christianson, 462.
III. GROUNDS AND SUBJECTS OF COM- PENSATORY DAMAGES.
1044 (Mich.) Failure to strike testimony not considered without motion to strike.-Peo- (A) Direct or Remote, Contingent, or Pros- ple v. Sekelyn, 479.
Submission of cause not open to attack when there was no motion for directed verdict and requests recognized issue.-Id.
1055 (Mich.) Remark of counsel not con- sidered without exception.-People v. Sekelyn, 479.
pective Consequences or Losses. 32 (Iowa) Compensation awarded for per- sonal injuries.-Spiker v. City of Ottumwa, 465.
40 (2) (Iowa) Loss of profits affords basis for damages for breach.-Sargent v. Frank Cram & Sons, 916.
1059(1) (Wis.) Exceptions cannot bring up Loss of profits proper basis for breach of whole case.-State v. Corscot, 179. contract to provide sand for hauling.-Id. Exceptions must incorporate relevant evi-46 (Wis.) No recovery for value of medical services dence or proceedings.-Id. rendered gratuitously.-Nelson 1063 (4) (Mich.) Evidence not weighed Pauli, 217. without motion for new trial.-People v. Sek- elyn, 479.
(B) Aggravation, Mitigation, and Reduc- tion of Loss.
(D) Record and Proceedings Not in Rec-62(4) (Iowa) Plaintiff had right to sell
1114(2) (Minn.) On appeal Supreme Court cannot consider matters not set forth in set- tled case or bill of exceptions.-State v. Swan, 581.
(F) Dismissal, Hearing, and Rehearing.
1132 (Iowa) Court will not refuse hearing because arguments not filed in time, where no prejudice appears.-State v. McDougal, 929.
1137(5) (Minn.) In prosecution for wife abandonment, evidence of conversation between attorney and defendant's wife held not preju- dicial error.-State v. Ford, 812.
1139 (Iowa) No retrial on appeal by state. -State v. Kelley, 834.
truck and recover damages after breach of con- tract to furnish sand for hauling.-Sargent v. Frank Cram & Sons, 916.
VI. MEASURE OF DAMAGES. (A) Injuries to the Person. 96 (Iowa) Amount discretionary with ju- ry.-Buffalo v. City of Des Moines, 844.
(B) Injuries to Property.
105 (Neb.) Rule of damages on conversion of injured animals stated.-Hammang v. Chi- cago & N. W. Ry. Co., 991.
VII. INADEQUATE AND EXCESSIVE
132(1) (Wis.) $8,000 held excessive $2,000 for damages to truck and injuries to shoulder.-Heintz v. Schenck, 610.
1144(5) (lowa) Presumption is in favor of appellate court's jurisdiction.-State v. Mc-132(2) (Iowa) $3,000 not excessive for Dougal, 929. possibly permanent injury to shoulder and arm. 1159(5) (Iowa) Supreme Court will not-Spiker v. City of Ottumwa, 465. disturb verdict of conviction where supported 132 (2) (N.D.) Verdict for $8,000 for prob- by evidence.-State v. Bouma, 887. ably permanent injuries held not excessive.- 1165(1) (Iowa) Denial of motion to sub- Asch v. Washburn Lignite Coal Co., 757. mit case as of date on which appellant's argu-132(6) (Wis.) Verdict for $10,000 held ment should have been filed held not prejudi- not excessive for injury to ankle.-Nelson v. cial.-State v. McDougal, 929. Pauli, 217.
11662 (12) (Minn.) Rebuke of defendant's counsel for asking seemingly impertinent ques- tion of state's witness held too severe and prejudicial.-State v. Jensen, 581.
1169(12) (Minn.) In prosecution for wife abandonment, evidence of conversation between the attorney and defendant, held not prejudicial error. State v. Ford, 812.
11702 (1) (Mich.) Reversible error not to permit accused's counsel to inspect memoranda of witness.-People v. Schepps, 508.
1171(3) (Iowa) Misstatement of prosecu- tor in argument held not ground for reversal. -State v. Christianson, 462.
1173(2) (Mich.) Instruction defining "prac- tice of medicine" should recognize exceptions, but failure held not prejudicial.-People v. Sekelyn, 479.
1183 (Iowa) Authority of Supreme Court to commute sentence.-State v. Olander, 53. 1183 (Iowa) Judgment for fine in excess 173(2) (Iowa) Evidence admissible of of authority ordered reduced.-State v. Braf- ford, 625.
1186(4) (Neb.) Reversal, for errors not resulting in substantial miscarriage of justice, improper.-Porter v. State, 1006.
wife's inability to take in sewing, though not engaged in that work at the time.-Buffalo v. City of Des Moines, 844.
(C) Proceedings for Assessinent.
1189 (Iowa) Cause reversed on state's ap-206 (1) (Neb.) In a personal injury action peal not remanded where defendant was ac- it is proper to order a physical examination of
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
206 (4) (Neb.) In a personal injury action application for an order for a physical exam- ination of plaintiff must be timely.-O'Brien v. Sullivan, 532.
| 211(1) (S.D.) Seller's administrator to avoid deed and bill of sale without procuring decree of rescission was required to prove sell- er entirely without understanding at time of execution.-Lynn v. Schirber, 570.
211(4) (owa) Evidence insufficient to show execution was induced by threats, coer- cion or undue influence.-Sutherland State Bank v. Furgason, 200.
Proof of mental incapacity and undue influ- ence must be clear and convincing.-Id.
211(4) (Iowa) Evidence held not to show undue influence.-Ross v. Lawrence, 455.
56 (2) (Neb.) Delivery depends on inten- (B) Production and Inspection of Writ- tion.-Bruce v. Albaugh, 366.
68(3) (Iowa) Mental capacity may exist though grantor has not capacity to do business generally. Sutherland State Bank v. Furgason, 200.
72(1) (Iowa) Execution at suggestion or request of grantee does not establish undue influence. Sutherland State Bank v. Furga-
ings and of Other Matters.
89 (Wis.) Denied where all material cor- respondence already produced.-Worthington Pump & Machinery Corporation v. Northwest- ern Iron Co., 156.
Protection or inspection sought must be ma- terial, and affect merits of action.-Id.
Plaintiff's attempts at cancellation of con- tract prior to defendant's cancellation held im- material on petition for inspection of corre- spondence.-Id.
72(1) (Neb.) Undue influence to avoid 92 (Wis.) Writings must be in possession deed must control grantor's will.-Bruce v. Al- or control of adverse party.-Worthington baugh, 366. Pump & Machinery Corporation v. Northwest- ern Iron Co., 156.
72(4) (Iowa) Granddaughter and husband could appeal to grantor's sense of justice with- 97(1) (Wis.) Facts showing materiality out being chargeable with undue influence. and necessity must be alleged.-Worthington Sutherland State Bank v. Furgason, 200. Pump & Machinery Corporation v. Northwest- 72(4) (Neb.) Affection for children ern Iron Co., 156. relatives will not make gift voidable.-Bruce v. 97(6) (Wis.) Properly denied where shown Albaugh, 366.
IV. PLEADING AND EVIDENCE.
on adverse examination and defendant's testi- mony that all correspondence had been pro- duced.-Worthington Pump & Machinery Cor- pre-poration v. Northwestern Iron Co., 158.
194(2) (Iowa) Evidence negativing sumption of delivery of deed in grantee's pos- session after grantor's death must be con- vincing.-Mathers v. Sewell, 636.
Evidence held insufficient to overcome pre- sumption of delivery arising from possession. -Id.
In absence of proof of correspondence be- tween defendant and its agent and materiality thereof, inspection of such correspondence will be denied.-Id.
196(3) (Iowa) Burden on party suing for See Appeal and Error, 780–803. cancellation to establish mental incapacity and undue influence.-Sutherland State Bank V. Furgason, 200.
203 (Iowa) Expenditure of money by gran- tee considered on question of undue influence. -Ross v. Lawrence, 455.
208(4) (Neb.) Recording of deed evidence of delivery.-Bruce v. Albaugh, 366.
208(6) (Neb.) Recording of deed evidence
of acceptance.-Bruce v. Albaugh, 366.
211(1) (Iowa) Evidence insufficient to
~60(6) (N.D.) Refusal to dismiss for fail- ure to bring action to trial within 5 years held not error.-Burke v. Minnekota Elevator Co., 948.
IV. JURISDICTION, PROCEEDINGS, AND
show mental incapacity.-Sutherland State 161 (Minn.) Evidence of fraud must be Bank v. Furgason, 200.
convincing to justify vacation of default di-
vorce judgment after good-faith marriage.- Walters v. Walters, 693.
Evidence closely scrutinized on application to open'default divorce judgment for fraud where plaintiff has remarried.-Id.
On application to open default divorce judg- ment for fraud, issues may be tried on oral evidence.-Id.
posits so as to oblige contractor to clean twice. -Id. Evidence held to show cleaning contract not canceled by order of War Industries Board. -Id. Excavation in excess of estimates held not to entitle contractor to cancel cleaning contract. -Id.
Trial of issues as to fraud on application to 63 (lowa) Landowner held entitled to con- set aside default divorce decree proper.-Id.
194 (Iowa) Appellee taxed for cost of un- necessary part of additional abstract.-Smith v. Smith, 632.
V. ALIMONY, ALLOWANCES, AND DISPOSı-
TION OF PROPERTY.
struct ditch from another ditch maintained for many years to a pond, but not to dam original ditch.-Allen v. Berkheimer, 683.
Party allowed only nominal damages for wrongful damming of ditch.-Id.
II. ASSESSMENTS AND SPECIAL TAXES. received ~~71 (Iowa) Claim property benefits is not valid objection to assessment.- 240 (2) (Iowa) Husband's signing as sure- Philip Drainage Dist. v. Peterson, 18. ty not considered as liability in fixing alimony.71 (Minn.) Repair of public drainage sys- tem a public benefit within statute.-State v. -Smith v. Smith, 632.
240 (3) (Minn.) Findings for plaintiff as to County Board of Polk County, 709. permanent alimony, etc., held supported by evi-79 (Iowa) Objection to assessment avail- able to landowner admitting regular organiza- dence.-Wetter v. Wetter, 144. tion of district and drain constructed stated. -Philip Drainage Dist. v. Peterson, 18.
240 (5) (Iowa) Alimony held not excessive. -Nelson v. Nelson, 904.
245 (2) (Iowa) Moderate decrease of de- fendant's earnings a possible change in situa- tion presumably contemplated when alimony awarded.-Keyser v. Keyser, 438.
Assessment of lands of old district for ex- tension sustained.-Id.
79 (Minn.) Assessment for enlargement may be apportioned on land benefited.-Lee v. Jackson County, 713. 252 (Iowa) Alimony to wife of 55 in one-82(3) (Iowa) Only objections specified be- third the farm, with the improvements, held fore supervisors can be considered on appeal from confirmation of proper. Smith v. Smith, 632. Drainage Dist. v. Peterson, 18.
252 (Wis.) Property allowance held excessive.-Twohig v. Twohig, 592. Wife may be allowed more than one-third of property, even though her marital delict is greater than that of her husband.-Id.
82 (3) (Minn.) Reasons for opinion of wit- ness as to benefit to lands to be considered by jury. In re County Ditch No. 67, Murray County, 711. to-82(3) (Minn.) Order of county board di- recting enlargement of ditch held not appeal- able, and not to be attacked on appeal from as- sessment.-Lee v. Jackson County, 713.
263 (Iowa) Provision of decree making tal amount of alimony due, and providing for issuance of execution, on default in monthly payments, held too drastic.-Nelson v. Nelson,
286 (Wis.) Refusal to appoint trustee for wife will not be disturbed in absence of abuse of discretion.-Twohig v. Twohig, 592.
VI. CUSTODY AND SUPPORT OF CHILDREN.
82(3) (Minn.) Notice of appeal in drain- age proceedings held sufficient.-Connor Martin County, 715.
Validity of order establishing ditch cannot be questioned on appeal from assessments for benefits.-Id.
298 (3) (Wis.) Custody of minor daughters given to wife although guilty of desertion. See Intoxicating Liquors. Twohig v. Twohig, 592.
308 (Iowa) Allowance for child held not excessive.-Nelson v. Nelson, 904.
VII. OPERATION AND EFFECT OF DI- VORCE, AND RIGHTS OF DI- VORCED PERSONS.
DUE PROCESS OF LAW.
See Constitutional Law, 290–312.
I. CREATION, EXISTENCE, AND TER- MINATION.
320 (Iowa) Marriage of insured with di- vorcee from another state held valid.-Web-36(3) (Minn.) Acquisition by adverse user of easement in alley on adjoining premises not ster v. Modern Woodmen of America, 659. sustained.-E. M. & H. F. Ware v. Home Se- curities Co., 242.
Until there has been an unqualified accept-19(9) (Iowa) Negligence for jury.-Cole- ance of work, contractor held not entitled to man v. Iowa Ry. & Light Co., 642. interest on money held in reserve.-Id.
Cleaning contractor held not entitled to can- cel contract on ground that it was breached by failure to furnish right of way for placing spoil.-Id.
19(12) (Iowa) Contributory negligence for jury. Coleman v. Iowa Ry. & Light Co., 642. EMBEZZLEMENT.
Evidence held to show that failure of rail-30 (Neb.) Immaterial that name of corpo- road to excavate crossings did not cause de-ration, owner of property embezzled, differed
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