PART III.

CRIMINAL CODE.

PART I.-CRIMES AND OFFENSES.

CHAPTER I.-ACCESSORIES IN FELONY.

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.]

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 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 FETICIDE.

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.

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

NOTE.-"An act to establish a criminal code." Passed March 4. Took effect Sept. 1. 1873. G. S. 719. Provisions relative to costs are embraced in title and are constitutional. 10 Neb. 300.

SEC. 3. Intoxication is no excuse. 9 Neb. 253. But it may be taken into consideration as a circumstance to show that the act was not premeditated. Id. 4 Neb. 289. Evidence must show that party accused perpetrated the act purposely, that he did it with the intent to kill, and of deliberate and premeditated malice. 6 Ñeb. 139. Where prosecution establishes an intentional homicide, and nothing explanatory is shown, the implication of malice arises, which it is incumbent upon the prisoner to remove. 6 Neb. 339. The act being unlawful, malice is presumed. 9 Neb. 248. And to make the act murder in the first degree it is only necessary to establish that it was done with deliberation and premeditation, of which there being some evidence before the jury their verdict fixing that as the degree of criminality is conclusive on that point. Id. Facts showing that the prisoner was accessory only, will not warrant a conviction under an indictment for murder. 8 Neb. 82. Evidence merely showing presence of accused, at time of the murder, without more, is not sufficient to make him a principal therein. Id. 88. On trial of husband for the murder of his wife evidence of his improper devotions to, and criminal intercourse with another woman is admissible as tending to show motive. 8 Neb. 411. An instruction that leaves the jury at liberty to presume "premeditated malice from the fact of a deliberate intention unlawfully to kill" alone, is erroneous. 9 Neb. 303. Indictment should contain a certain description of the crime and the facts constituting it. 2 Neb. 162. Where, on a trial for murder, there is testimony tending to show that the accused acted in self defense, it must be submitted to the jury to be given such credit as they may think it entitled to. 9 Neb. 165.

SEC. 4. When the fact of killing is shown and no explanatory circumstance is proven, malice is presumed and the crime is murder in the second degree. 5 Neb. 384. 6 Neb. 140. 9 Neb. 303.

thereof, shall be imprisoned in the penitentiary not less than ten years, or during life, in the discretion of the court.

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.

SEC. 6. [Foticide-Homicide in committing same.]--Any physician. or other person who shall administer, or advise to be administered, to any pregnant 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 devise 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 foetus, or mother, in consequence thereof, be imprisoned in the penitentiary not less than one nor more than ten years.

CHAPTER III.-FIGHTING BY AGREEMENT.

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.

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 preceding 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 cost of prosecution. [Amended 1875, 2.]

SEC. 9. [Duelling.]-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, message, letter, or in any 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.

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 dollars, or be imprisoned in the county jail, not exceeding ten days, or both, at the discretion of the court.

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

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, and shall be imprisoned in the penitentiary during life.

SEC. 12. [Rape upon other female.]-If any person shall have carnal

SEC. 12. Rape defined. 6 Neb. 282. Injured party a competent witness, her credibility being left to the jury. Conviction may be had on testimony of prosecutrix alone. Id. 283.

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 seventeen years and upward, shall carnally know or abuse any female child, under the age of ten years, with her consent, every such person so offending shall be deemed guilty of a rape, and shall be imprisoned in the penitentiary, not more than twenty nor less than three years.

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.

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.

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.

SEC.16. [Shooting and stabbing, with intent to wound.]—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.

SEC. 17. [Assault and battery-Menacing threat.1-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 dollars, or imprisoned in the jail of the county not exceeding three months, or both, in the discretion of the court, and shall, moreover, be liable to the suit of the party injured. [Amended 1875, 2.]

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, or shall arrest or imprison any person or persons, with the intention of having such person or persons carried out of the state, unless it be in pursuance of the laws thereof, shall be confined in the penitentiary not less than three nor more than seven years, and shall, moreover, be liable for the costs of prosecution.

SEC. 19. [False imprisonment.]-False imprisonment is the unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority. Any person convicted of false imprisonment, shall be fined in any sum not exceeding five hundred dollars, or imprisoned not exceeding one year in the county jail.

SEC. 20. [Child stealing.]-Every person who shall maliciously or forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of ten years, with intent unlawfully to detain or conceal such child from its parent or parents, or guardian, or other person having the lawful charge of such child, shall be imprisoned in the penitentiary not more than seven years nor less than one year.

SEC. 14. In an indictment for an assault with intent to commit murder it is necessary to allege the assault as having been made purposely and maliciously; but it is no objection to the indictment that it also charges the malice to have been deliberate and premeditated. 4 Neb. 552. To constitute an assault with intent to commit rape, there must have been an intent and that intent manifested by an assault for that purpose upon the person intended to be ravished. 6 Neb. 282. A count for an assault with intent to commit a rape may be joined with a count for rape itself. Id. 284. An assault with intent to commit murder is but one offense and if indictment contains no other, a general verdict of guilty is good. 5 Neb. 418. Physicians may testify what in thei opinion would be the natural and probable results of injuries inflicted by the accused upon the person assaulted. Id.

SEC. 16. In an indictment containing two counts, one for malicious shooting with intent to kill, and the other for malicious shooting with intent to wound, the defendant is not entitled to an order compelling the prosecutor to elect on which count he would proceed. 8 Neb. 486.

SEC. 21. [Aiding and abetting same.]-Every person who shall harbor or conceal, with intent to detain from its parent or parents, or guardian, any child under the age of ten years, so led, taken, carried, decoyed or enticed away, as in the preceding section specified, shall, upon conviction thereof, be imprisoned in the penitentiary hot more than seven years nor less than one year.

CHAPTER V.-OFFENSES AGAINST PUBLIC PEACE AND JUSTICE.

SEC. 22. [Treason.]-Apy person or persons residing in this state, who shall levy war against this state, or the United States of America, or shall knowingly adhere to the enemies of this state, or the United States, giving them aid and comfort, shall be deemed guilty of treason against the state of Nebraska, and shall be imprisoned in the penitentiary during life.

SEC. 23. [Accessories.]—Any person or persons residing within this state, who shall surrender or betray, or be in any way concerned in the surrendering or betraying any military post, fortification, arsenal or military stores of this state, or the United States, into the possession or power of any enemies of either, or shall supply arms or ammunition or military stores to such enemies, or who shall unlawfully and without authority, usurp possession and control of any such military post, fortification, arsenal or military stores, or having knowledge of any treason against this state or the United States, shall wilfully omit or refuse to give information thereof to the governor, or some judge of this state, or to the president of the United States, shall be imprisoned in the penitentiary not less than ten years nor more than twenty years.

SEC. 24. [Military expeditions against other states.]—If any person shall, within this state, begin or set on foot, or provide or prepare the means for any unauthorized military expedition or enterprise, to be carried on from thence against the territory or people of any of the United States, every person so offending shall be punished by imprisonment in the penitentiary not less than one nor more than ten years.

SEC. 25. Carrying concealed weapons.]-Whoever shall carry a wea pon or weapons, concealed on or about his person, such as a pistol, bowie-knife, dirk, or any other dangerous weapon, on conviction of the first offense shall be fined not exceeding one hundred dollars, or imprisoned in the county jail not more than thirty days, and for the second offense not exceeding one hundred dollars or imprisoned in the county jail not more than three months, or both, at the discretion of the court; Provided, however, If it shall be proved from the testimony on the trial of any such case, that the accused was, at the time of carrying any weapon or weapons as aforesaid, engaged in the pursuit of any lawful business, calling or employment, and the circumstances in which he was placed at the time aforesaid were such as to justify a prudent man in carrying the weapon or weapons aforesaid, for the defense of his person, property or family, the accused shall be acquitted. [Amended 1875, 3.]

SEC. 26. [Unlawful assembly and rout.]-If three or more persons shall assemble together with intent to do any unlawful act, with force and violence, against the person or property of another, or to do any unlawful act against the peace; or, being lawfully assembled, shall agree with each other to do any unlaw ful act as aforesaid, and shall make any movement or preparation therefor, the persons so offending, shall be fined in any sum not exceeding one hundred dollars, and be imprisoned in the jail of the county not exceeding three months. [Id.]

SEC. 27. [Proclamation dispersing rioters-Disobedience-Pow er of the county-Persons refusing assistance.]-Whenever three or more persons shall be assembled as aforesaid, and proceed to commit any of the offenses aforseaid, it shall be the duty of all judges, justices of the peace, and sheriffs, and all ministerial officers, immediately, upon actual view, or as soon as may be, on information, to make proclamation in the hearing of such offenders, commanding them in the name of the state of Nebraska, to disperse and depart to their several homes or lawful employments; and if, upon such proclamation,