ing or transporting merchandise upon which after this act takes effect, shall .have been printed, painted, attached, or otherwise placed, a representation of any such flag, standard, color, or ensign, to advertise, call attention to, decorate, mark, or distinguish, the article, or substance, on which so placed, or who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color, or ensign, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding one hundred dollars or by imprisonment for not more than thirty days, or both, in the discretion of the court; and shall also forfeit a penalty of fifty dollars for each such offense, to be recovered with costs in a civil action, or suit, in any court having jurisdiction, and such action or suit may be brought by and in the name of any citizen of this State, and such penalty when collected less the reasonable cost and expense of action or suit and recovery to be certified by the Judge or clerks of the court in which the judgment is rendered, and shall be paid into the county treasury of the county in which the offense is committed to be distributed as provided by law; and two or more penalties may be sued for and recovered in the same action or suit. The words, flag, standard, color or ensign, as used in this subdivision or section, shall include any flag, standard, color, ensign, or any picture or representation, or either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color or ensign, of the United States of America, or a picture or a representation, of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the same, without deliberation may believe the same to represent the flag, colors, standard, or ensign, of the United States of America. The possession after this act takes effect, by any person, other than a public officer, as such, of any such flag, standard, color or ensign, on which shall be anything made unlawful at any time by this section, or of any article or substance or thing on which shall be anything made unlawful at any time by this section shall be presumptive evidence that the same is in violation of the section, and was made, done or created after this act takes effect, and that such flag, standard, color, ensign, or article, substance, or thing, did not exist when this act takes effect. History.-Laws 1905, H. R. 341, sec. 1; in force April 3. Sec. 2375s. An act in relation to the use of the flag of the United States of America. McClay's interpretation of preceding act, sec. 2375r. Limitation and exceptions under the preceding act. 2375s. When by any statutes of this state, the use of the flag of the United States of America, or of any picture or representation of such flag, is made penal or unlawful, such statutes shall not apply to any act permitted by the statutes of the United States of America or by the United States army and navy regulations nor shall it be construed to apply to a newspaper, periodical, book, pamphlet, circular, certificate, diploma, warrant or commission of appointment to office, ornamental picture, article of jewelry, or stationery for use in correspondence, on any of which shall be printed, painted or placed, said flag, disconnected from any advertisement. History.-Laws 1905, H. R. 361, sec. 1; in force April 3. Sec. 2375t. An act to provide for the proper observance of Decoration Day, and to prevent horse racing, ball playing, and all other sports and games on that day tend-. ing to disturb the public peace, and prescribing a penalty for its violation. Hughes's Decoration Day bill. 1905, S. F. 232; in force July 1. Desecration of Decoration Day. 2375t. Any person or persons who shall on the 30th day of May commonly known as Decoration Day, engage in horse racing, ball playing, or in any game of sport, which may tend to disturb the public peace on the 30th day of May shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding One Hundred Dollars, or by imprisonment for not more than thirty days, or both, in the discretion of the Court. History.-Laws 1905, S. F. 232, sec. 1; in force July 1. Bond of defendant to appear or to keep the peace. 2401. When the party complained of shall be brought before the magistrate, he shall be heard in his defense, and all witnesses shall be examined upon oath, and if upon the examination, the magistrate shall be of the opinion that there is just cause for the complaint, he shall order the person complained of to enter into a recognizance, with good and sufficient surety in any sum not less than Fifty Dollars nor more than One Thousand Dollars for his appearance before the District Court on the first day of the next term thereof, or forthwith, if it be term time of said court, and in the meantime be of good behavior generally, and especially toward the person complaining,* Provided, That if the defendant, before or at the hearing, shall enter into a recognizance, with such surety as shall be approved by the magistrate, to keep the peace and be of good behavior generally for a period of time to be fixed by the magistrate, but not to exceed one year from the date of said order, the said defendant shall not be required to enter into a recognizance for his appearance before the District Court. History.-Amended and all after added 1905, H. R. 58; in force July 1. 2412 1. The power of equity to enjoin prize fighting--boxing-use of gloves. 57. C. L. J. p. 407. Accused committed or bailed. 2436. If, upon the whole examination, it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he be discharged by due course of law. Provided, however, that, if the offense is bailable, he may be ordered released upon entering into a recognizance in such sum as may be fixed by the magistrate with one or more good and sufficient sureties to be approved by him, conditioned that the accused appear forthwith before the district court, if then in session, and if not in session, then on the first day of the next term thereof and not depart the court without leave; but if it shall appear that no offense has been committed or that there is not probable cause for holding the accused to answer the offense he shall be discharged. No recognizance requiring the accused to appear at the next term of court shall be rendered invalid by the fact that the court is in session. History. Amended 1905, H. R. 357; in force July 1. 26. The writ of habeas corpus can not act as a proceeding in error. If the judgment restraining a person of his liberty is absolutely void, he may be discharged by habeas corpus. Michaelson v. Beemer, Neb.; 101 N. W. R. 1007. 27. When the relator gives evidence in his own behalf, the court should not allow him to be cross-examined upon matters not related to his examination in chief, but an error in so doing is without prejudice to the defendant. Ex parte Dennison, Neb. -; 101 N. W. R. 1045. 28. The judgment of a district court in a proceeding in habeas corpus will not be reviewed on appeal. In re Greaser, Neb.; 101 N. W. R. 235. 29. The return of the officer in habeas corpus from a governor's warrant in extradition proceedings need not show all the facts upon which such warrant was based. Ex parte Dennison, Neb. -; 101 N. W. R. 1045. 1. Competency of witnesses appearing before the grand jury as effecting an indictment returned upon such evidence. 57 C. L. J. 281. 2548 5. In a prosecution for forgery the information in one count may charge forgery and in another the uttering of the forged instrument, and the state can not be compelled to elect between the two charges. Opinions Atty. Genl. 1902-3, 205. 2574 3. Upon the record made held that defendant's motion to quash counts of the information was properly overruled. Blair v. State, Neb. -; 101 N. W. R. 17. 2582 4. The right to have the complaint read to him, and to be allowed to plead thereto, may be waived by the defendant, and he will be held to have waived the same where a trial is had as though such plea had been entered. McNeal v. Hunter, Neb. -; 101 N. W. R. 236. - 5. The right to have the complaint read to him, and to be allowed to plead thereto, may be waived by the defendant, and he will be held to have waived the same where a trial is had as though such plea had been entered. McNeal v. Hunter, Neb. -; 101 N. W. R. 236. 2. A conspiracy, like any other fact which is the subject of judicial investigation, may be proved inferentially or by circumstantial evidence. The acts and 'declarations of a conspirator during the pendency of the conspiracy, and in furtherance of the common purpose, are admissible in evidence against his associates. A conspiracy to steal and sell hogs for the benefit of all engaged in the illegal enterprise is pending until the sale has been made and proceeds divided. Before the acts and declarations of a canspirator are entitled to be considered as evidence against his associates, the conspiracy itself must be established, but the order of proof is a matter within the discretion of the trial court. O'Brien v. State, Neb. -; 96 N. W. R. 649. 172. A local custom can not operate to suspend a criminal statute, nor to overthrow the rules of evidence by which the commission of an offense is proven. Crockford v. State, Neb. -; 102 N. W. R. 70. 173. An ordinary written statement of a third person that he committed the crime in question which is not sworn to and is not preserved in the form of a deposition can not be received in evidence for the benefit of the defendant. Mays v. State, Neb.; 101 N. W. R. 979. 174. The right of self-defense is available to every person, regardless of the nature of his business, who is assaulted, or who, upon just grounds, apprehends an immediate unlawful attack. Hoy v. State, Neb. -; 96 N. W. R. 228. 175. A person attacked or formidably threatened by three persons acting in concert may avail himself of the right of self-defense by using commensurate force against the nearest assailant, although it is not from him, but from the others, that great bodily harm is apprehended. Hoy v. State, Neb.; 96 N. W. R. 228. 176. An instruction that the presumption of innocence remains with the accused till by competent evidence the state established guilt beyond a reasonable doubt, does not change the burden of proof. Van Syoc v. State, Neb.; 96 N. W. R. 266. 177. Instruction on reasonable doubt held not prejudicial. Bothwell v. State, Neb.; 99 N. W. R. 669. 178. Instruction on considered. Lillie v. State, 100 N. W. R. 316. reasonable doubt Neb. -; Neb. 179. Instruction defining reasonable doubt criticised. Junod v. State, -; 102 N. W. R. 462. -- 180. Error can not be based upon a single sentence or clause of instructions. If when read in full, and considered together as a whole they state the law applicable to the case correctly and are not prejudicial to the rights of the accused, it is sufficient. Junod v. State, -; 102 N. W. R. 462. Neb. 181. Instructions to the jury must be based upon, and applicable to, the evidence; and where in the trial of a criminal case an instruction is given without any testimony to sustain it, and prejudice results thereby, a new trial will be granted. Blair v. State, N. W. R. 808. Neb. -; 100 182. Instruction on the question of insanity sustained. Bothwell v. State, Neb.; 99 N. W. R. 669. 183. It is not error to instruct the jury that the defendant is under no obligation to testify in her own behalf, and that the statute expressly declares that her neglect to testify shall not create any presumption against her. Lillie v. State,Neb. -; 100 N. W. R. 316. 184. It is not error to refuse a requested instruction when the substance of it has been already given. Palmer v. State, Neb.; 97 N. W. R. 235. 185. It is proper to instruct the jury to give the testimony of the defendant "only such weight" as they think it deserves. Palmer v. State, Neb.; 97 N. W. R. 235. 188. The attempt of the accused to escape from jail, what he said and did at the time of his arrest, and what was found in his room when arrested may be shown as inculpatory circumstances. Kennedy v. State, Neb.; 99 N. W. R. 645. 189. It is proper to show that the accused had threatened witnesses, urged them to abscond, or induced them to testify falsely or conceal their whereabouts from the prosecutor. Blair v. State, Neb. -; 101 N. W. R. 17. 190. Evidence in the record held sufficient to resist a demurrer. Blair v. State, Neb.; 101 N. W. R. 17. 198. The fact that the father of the complainant sat near her while testify-` ing is not error unless it appears that his presence caused her to deviate from the truth. Where it is shown that a note and certain letters written to the accused and received by the complainant, a child, had been totally destroyed at defendant's request, she may be permitted to testify as to their contents. Gould v. State, Neb. -; 99 N. W. R. 541. 199. A defendant in a prosecution for murder is ordinarily entitled to have the theory of his defense submitted to the jury by proper instructions; but where by his own theory, he is guilty of manslaughter, and the jury so find, his rights are not prejudiced by a failure to give his instructions. Ford v. State, Neb. -; 98 N. W. R. 807. - 200. The conduct and behavior of bloodhounds after being set upon the trail of a fugitive criminal may not be given in evidence by the state for the purpose of proving that the scent of the accused and the scent of the person who perpetrated the crime which is being investigated are identical. Brott v. State, N. W. R. 593. Neb. -; 97 which 201. When the evidence upon the trial court decided an issue of fact is not preserved in the record, it will be presumed that the decision is right. Hoy v. State, - Neb. ; 96 N. W. R. 228. 202. A confession of guilt should not be admitted in evidence where it is procured from the prisoner by the prosecuting attorney by holding out hope of iminunity. Opinions Atty. Genl. 1902-3, 206. 203. The testimony of a witness that a third person had stated to him that he was guilty of the crime of which the defendant was accused is heresay evidence, and therefore not admissible. Mays v. State, Neb. -; 101 N. W. R. 979. 204. To establish an alibi, defendant must show that he was present at some |