and until such tenancy is terminated is not liable to the owner for anything more than the contract calls for. Humphrey v. Herrick, Unoff.; 99 N. W. R. 233. 19. Where a tenant long in arrears sent a check for a month's rent with a memorandum on the check making it apply in payment to the last month's rent, held that the acceptance of the check in the absence of the showing of actual knowledge of the proposed limitation did not waive the forfeiture. Cochran v. Philadelphia M. & T. Co., Neb. -; 96 N. W. R. 1051. 1964 4. Prior to the act of 1901 no appeal lay to the district court from a judgment of a justice in forcible entry and detention. Sullivan v. Haight, 2 Unoff. 371; 96 N. W. R. 487; Sullivan Transfer Co. v. Paska, 1 Unoff. 600; 96 N. W. R. 163; Adkins v. Andrews, 1 Unoff. 810; 96 N. W. R. 228. 5. One who attacks an appeal under the former unconstitutional law for appeal in forcible entry and detention, can not recover on the, undertaking given for such appeal. U. S. F. & G. Co. v. Ettenheimer, Neb. -; 97 N. W. R. 227. 1977 1. The principal and sureties upon an appeal bond, given under a void statute, when in fact no appeal could be taken, are liable if the court, without objection, entertains the appeal, and upon a retrial of the issues renders a judgment adverse to the appellant. McVey v. Peddie, Neb. -; 96 N. W. R. 166. 2. A bond given in an attempted appeal in an action of forcible entry and detention at a time when there was no appeal allowed by statute, but where the appeal was recognized by both parties and the appellant retained the use of the premises and had a retrial on appeal, may be recovered upon as a common law contract. United States F. & G. Co. v. Ettenheimer, Neb. -; 99 N. W. R. 652. 61. Where all the elements of murder are proven, a verdict will not be set aside because a motive was not established. Robinson v. State, Neb. -; 98 N. W. R. 694. 62. Proof of a motive is always competent in a murder case. The fact that the motive is out of proportion to the crime committed does not require that evidence of such motive be excluded. The supposed danger that the jury may give too much weight to the offered evidence is not a legal ground for excluding it. It is not indispensable to the conviction that the motive be shown. Lillie v. State, Neb. -; 100 N. W. R. 316. 64. The conduct, appearance, and action of the accused immediately after the crime was committed, as well as subsequent statements tending to show connection with the transaction, are properly shown. Lillie v. State, Neb.; 100 N. W. R. 316. 65. Where the defendant is charged with murder by use of firearms, it is proper to admit evidence that the defendant nad for many years been familiar with their use. It is also proper to allow evidence of experiments to illustrate the effect and use of such weapons in the manner testified to by witnesses. It is also proper to admit evidence that the defendant had access to the weapons of the nature with which the crime was committed. But if there was opportunity to conceal such weapons after the crime was committed, such evidence is not indispensable. Lillie v. State, - Neb.; 100 N. W. R. 316. 66. Attempts to commit murder by sending an infernal machine. 57 C. L. J. 183. 67. Lynch law in America and the efforts made to stamp it out. 57 C. L. J. 1. 2053 13. A defendant on trial for murder in the second degree is entitled to a plain and correct statement from the court to the jury of the charge against him, and an instruction which omits material elements is erroneous. Hans v. State, Neb. -; 100 N. W. R. 419. 39. The generally accepted test of responsibility for crime is the capacity to understand the nature of the act alleged to be criminal, and the ability to distinguish between right and wrong with respect to such act. Moral insanity as a criminal defense is not recognized in this state. Bothwell v. State, Neb.; 99 N. W. R. 669. 40. Agreement of mother of defendant to pay a sum of money in consideration of the complainant marrying the defendant, her son, upheld as valid and binding. Henry v. Dussell, Neb. -; 99 N. W. R. 484. 41. In a prosecution under this section familiarity between the parties implicated may be received in evidence. Blair v. State, Neb.; 101 N. W. R. 17. 42. What testimoney of prosecutrix admissible under this section. Woodruff v. State, Neb.; 101 N. W. R. 1114. 2063 Secs. 2101a to 2101b. An act to regulate the sale of cocaine, and to provide a penalty for the violation thereof. Lee's cocaine bill. 1905, H. R. 104; in force July 1. Cocaine only sold on physicians' prescriptions. 2101a. No apothecary, druggist or other person shall be permitted to sell or give away any quantity of cocaine, except upon the prescription of a physician, said prescription not to be re-filled, provided that nothing in this act shall prohibit sale from manufacturers or wholesale dealers to retail druggists, physicians or dentists nor the use and prescription of these drugs by dentists in the practice of their profession. History.-Laws 1905, H. R. 104, sec. 1; in force July 1 Penalty. 2101b. Every person offending against the provisions of this act, shall be fined in any sum not less than Twenty Dollars nor more than One Hundred Dollars. History.-Laws 1905, H. R. 104, sec. 1; in force July 1. Secs. 2108 to 2108b. An act to provide for the punishment of persons guilty of breaking and entering buildings of all characters, with intent to commit any felony, or with intent to steal property of any value, and to repeal secs. 48 and 53 of the Criminal Code of Nebraska, except as to offenses heretofore committed thereunder. Thomas's burglary law. 1905, S. F. 150; in force April 4. Burglary. 2108 (48). If any person shall wilfully, maliciously and forcibly break and enter into any dwelling house, kitchen, smoke-house, slaughter-house, shop, office, store-house, mill, pottery, factory, water-craft, school-house, church or meeting house, barn, chicken-house, stable, ware-house, malt-house, still-house, public building or any other private building, railroad car factory, station-house or railroad car, with intent to kill, rob, commit a rape, or commit any felony, or with intent to steal property of any value, every person so offending shall be punished by imprisonment in the penitentiary, not more than ten years nor less than one year, or by a fine not exceeding five hundred dollars, and imprisonment in jail of the county, not exceeding six months, at the discretion of the court. History.-Laws 1905, S. F. 150, sec. 1; in force April 4. 24. In a trial for burglary evidence of what was found in the room of the defendant at time of his arrest, together with his conduct and statements on that occasion, his attempt to escape from jail while Repealing and saving provision. awaiting his trial may be shown as inculpatory circumstances. Kennedy v. State, Neb.; 99 N. W. R. 645. 2108a. That sections 48 and 53 of the Criminal Code of the State of Nebraska, be and the same hereby are repealed, except as to offenses heretofore committed thereunder. History.-Laws 1905, S. F. 150, sec. 2; in force April 4. Punishment under former act. 2108b. All violations of the provisions of said original sections 48 and 53 heretofore committed shall be punishable and punished to the same extent and in the same manner as though this act had not been passed. History-Laws 1905, S. F. 150, sec 3; in force April 4. 2113. Repealed 1905, S. F. 150; for new act see 2108. Abusing or overworking animals. 2129. Any person or persons who shall overdrive, abuse, overload, or overwork, any horse or horses, mule or mules, or oxen, or unnecessarily torture of torment any domestic animal shall, upon the conviction of any of the offences enumerated herein, be deemed guilty of a misdemeanor, and shall, be punished as hereinafter provided. History.-Laws 1887, p. 661, ch. 106, sec. 2; amended 1905, S. F. 40; in force July 1. Unlawful fishing. 2150. It shall be unlawful for any person to catch, kill, injure or destroy any fish in any public water in this State in any way what ever except with the use of hook and line; the use of seines, nets and other devices except the hook and line being hereby prohibited and made unlawful. Public waters within the meaning of this section shall embrace all lakes, ponds, rivers, creeks, bayous and streams except private artificial pond or ponds, subject to the exclusive dominion of a single ownership. Every violation of any provision of this section shall be a misdemeanor, and every person, association or corporation convicted of an offense under this section shali pay a fine not less than twenty-five ($25.00) Dollars and costs of prosecution, or suffer imprisonment in the county jail not less than ten (10) days, or until such fine and costs are paid. It shall be unlawful for any person to have in his or her possession any seine, net, or other unlawful instrument or device for taking or injuring fish with the intent of using the same in any water in this state, and it is hereby made the duty of all constables, justices of the peace and police judges of this State to prosecute all offenses against this act. Every seine, net, or other unlawful device under this act found in any water in this state or in the possession of any person intending to use the same in violation of this act may be seized by any person with or without warrant and deposited with a justice of the peace or police judge, who shall cause the owner or person having such seine, net, or other unlawful device in his possession, if known, to appear before said court and show cause why such seine, net, or unlawful device should not be destroyed; such court shall, upon such hearing, or upon default, enter judgment and in all cases of condemnation such seine, net or unlawful device shall be destroyed under the direction of said court. In all cases under this act the constable's and justice's fees shall be the same as in other cases of misdemeanor. History.-Laws 1875, p. 23, sec. 1; amended 1905, S. F. 64, sec. 1; in force March 28. Application to boundary streams. 2150a. Provided that nothing in this act shall be construed to apply to boundary streams of the state of Nebraska, except so much of said boundary streams as shall be within one hundred feet of the mouths of streams tributary thereto. History. This section added 1905, S. F. 64, sec. 2; in force March 28. Secs. 2155a to 2155c. An act to protect English pheasants, China p[h]easants, Mongolian partridge, Belgium partridge, black cocks, and other varieties of imported game birds. Copsey's game law. 1905, H. R. 244; in force July 1. Unlawful to destroy imported game birds. 2155a. It shall be unlawful for any person or persons to shoot or otherwise destroy any English P[h]easants China P[h]easants Mongolian P[h]easants English Partridge, Belgium Partridge, English Black cocks or any other variety of imported game birds, within this state. History.-Laws 1905, H. R. 244, sec. 1; in force July 1. Penalty for destroying imported game birds. 2155b. Any person violating the provision of section 1, of this act shall, upon conviction, be fined in any sum not less than twenty-five nor more than fifty dollars or be imprisoned in the county jail of the proper county not more than sixty days. History.-Laws 1905, H. R. 244, sec. 2; in force July 1. Duty of officers to enforce law. 2155c. It shall be the duty of the state game and fish commissioner, and every sheriff and county attorney within his county to enforce the provisions of this act. History.-Laws 1905, H. R. 244, sec. 3; in force July 1. Sec. 2157a. An act declaring the hunting and killing of squirrels a misdemeanor and providing a penalty therefor. Jones's squirrel law. 1905, S. F. 155; in force July 1. Unlawful to kill squirrels. 2157a. That any person who shall pursue, take, wound, kill or have in possession other than by ownership legally acquired, any red fox or grey timber squirrels, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in the sum of five dollars for each offense. It shall be the duty of the game wardens of this state to enforce the provisions of this act. History.-Laws 1905, S. F. 155, sec. 1; in force July 1. 23. Wire fastened to posts for the purpose of fencing up the public domain for temporary use is personal property and may be the subject of larceny. Junod v. State, Neb.; 102 N. W. R. 462. 24. A sentence of five years for stealing property to the value of $40 in the case stated is excessive and is reduced to two years and six months. Junod v. State, Neb.; 102 N. W. R. 462. 25. How far the recent possession of stolen property will raise a presumption of guilt of either larceny or burglary. 52 C. L. J. 292. Embezzlement. 2191 10. In prosecution for larceny, non-consent of the owner of the property alleged to have been stolen may, in a proper case, be inferred from circumstances. The unexplained possession of stolen property shortly after the theft of it is a fact which may justify the jury in inferring that the person so in possession is the thief. Palmer v. State, Neb. —; 97 N. W. R. 235. 11. Where one not the owner takes into his possession a calf found running at large, with intention to convert it to his own use without the consent of the owner, such taking is stealing under this section. Instructions approved. Crockford v. State, Neb.; 102 N. W. R. 70. - 12. The owner of a ranch is not in possession of an estray running with the cattle of his lessee, upon the ranch, when such cattle are in the immediate charge of the lessee's servant. Palmer v. State, Neb.; 97 N. W. R. 235. 13. Where the owner of the stolen cattle sues the thief for their value and attaches property, which action is afterwards dismissed, it is not an election which bars him from tracing the proceeds of the stolen cattle into other property by bill in equity to establish a resulting trust. Lamb v. Rooney, Neb. ; 100 N. W. R. 410. 2196 (121). If any clerk, agent, attorney-at-law, servant, factor or commission agent of any private person or any co-partnership, except apprentices and persons within the age of eighteen years, or if any officer, attorney-at-law, agent, clerk, servant, factor or commission agent of any incorporated company or joint stock company including all persons employed or commissioned by any employer, corporate or private, shall embezzle or convert to his own use, or fraudulently take or make away with or secrete with intent to embezzle or fraudulently convert to his own use without the assent of his or her employer or employers, or the owner or owners thereof, any money, goods, rights in action, or other |