been allowed an opportunity to chal- | viously formed and expressed an opinlenge the members of such grand jury ion in returning the first indictment: on the ground that they had pre-State v. Osborne, 61-330. plicity: The State v. Thomas, 53-214. | of evidence, or surplusage, and if the case is tried as upon the indictment for the breaking and entering with the criminal intent, a convic tion thereunder will not be erroneous on the ground of duplicity in the indictment. It is otherwise where under such indictment the defendant is convicted of larceny: State v. Shaffer, 59-290. An indictment charging in one count forgery, and in a second the uttering of the forged instrument, charges two offenses, and is bad (overruling State v. Nichols, 3-110): The State v. McCormack, 56-585; but objection to the indictment on the ground of duplicity cannot be raised for the first time in the supreme court: State v. Henry, 59391; and held, that where one of the counts was dismissed before the introduction of any evidence, and the plea of guilty entered as to the remaining count, the defect in the indictment was cured and the defendant properly convicted: State v. Buck, 59-382. Where an indictment charges breaking and entering with felonious intent and the felonious taking, stealing and carrying away of personal property, the charge of stealing may be regarded as a mere pleading SEC. 4305. The parties who enter into a conspiracy are by that act guilty of but one offense, whether their agreement is to commit one crime or many crimes, and the fact that an indictment alleges that the parties conspired to commit more than one crime is not bad for duplicity; but an indictment charging à conspiracy to commit, and also facts constituting the commission of the crime, charges two offenses and cannot be sustained: State v. Kennedy, 18 N. W. Rep., 885. 1071. Where an indictment charged the | held, that the indictment was suffilarceny of goods from a railroad cient under this section: State v. company, naming it, belonging to McIntire, 59-264; Same v. Same, parties to the grand jurors unknown, 59-267. SEC. 4314. 1073. Under an ordinary indictment as | guilty of aiding and abetting the principal, defendant may be found crime: State v. Hessian, 58–68. 1079. SEC. 4350. A defendant cannot waive jury | court: State v. Carman, 18 N. W. trial and consent to a trial by the Rep., 691. 1080. SEC. 4357. [It is evident by an examination of the sections referred to in this section. as well as by reference to the corresponding section in the Revision, and to, the section as it appears in the Code Commissioners' Report, that § 4342 and § 4343 are intended to be referred to, instead of § 4341 and § 4342 respectively.] SEC. 4362. 1081. Where judgment was entered upon a plea of guilty and a motion for leave to withdraw such plea and for new trial was filed, based on the ground that defendant was surprised by the punishment inflicted being greater than expected, held that the alleged ground of surprise was not sufficiently established to entitle the defendant to relief: State v. Buck, 59-382. The court cannot, under the guise of determining some questions which are legitimate, make remarks in the presence and hearing of the jury wh ch would constitute error if contained in an instruction, and thus deprive the defendant of the opportunity of having such error reviewed: State v. Stowell, 60–535. Statements by the district attorney in opening the case to the jury, of facts which he expects to prove and which if proved would be material and competent, may be made by him if in good faith, believing and having good reason to believe he will be able to sustain them, by evidence, although he is afterward unable to obtain evidence to sustain some of them: State v. Meshek, 61-316. SEC. 4421. In a particular case, a lengthy statement was made by prosecuting attorney of the evidence which it was expected would be introduced, and followed by an unfair argument of the case based to a considerable extent upon facts which were wholly unsubstantiated by the evidence afterward introduced, was held sufficient misconduct to require a reversal, the defendant having objected to the remarks of the prosecuting attorney at the time; and further, held, that the fact that attor ney for defendant replied to this opening argument in the same manner did not render the action of the prosecuting attorney error without prejudice: State v. Williams, 18 N. W. Rep., 682. 1090. SEC. 4428. Where defendant seeks to establish an alibi, the burden of proof is upon him, and it cannot be established except by a preponderance of evidence. This rule does not abrogate the doctrine of reasonable doubt. There may be a preponderance of evidence against defendant, and yet a reasonable doubt of his guilt. This reasonable doubt may be based upon the whole evidence, or upon the evidence establishing certain essential facts necessary to be established, or upon evidence of facts inconsistent with the prisoner's guilt. If upon the consideration of the whole evidence, or any part of it, the reasonable doubt arises as to any essential fact, the jury must acquit: The State v. Red, 53-69. The defense of an alibi must be established by defendant by a preponderance of evidence: The State v. Hamilton, 57-596. It is error to charge that "A reasonable doubt is such a doubt as fairly and naturally arises in the minds of the whole jury." Each juror must, under his oath, vote according to his own convictions, and the doubt with which he has to do is the doubt in his own mind: The State v. Sloan, 55-217. Where the prosecution relies upon the presumption of defendant's possession of recently stolen property to SEC. 4429. establish his guilt, the defendant is only required to introduce sufficient evidence as to having honestly come into possession of the goods, to raise a reasonable doubt of guilt: The State v. Richart, 57–245. The doctrine of Barton v. Thompson, 46-30, that in a civil action for damages for a criminal act, the commission of the act must be proven beyond a reasonable doubt, is overruled, and it is held that a preponderance of evidence in such case is sufficient to entitle plaintiff to recover. Whether slander and libel constitute an exception, quære: Welch v. Jugenheimer, 56-11; Barton v. Thompson, 56-571; Behrens v. Germania Ins. Co., 58-26; Kendig v. Overhulser, 58-195. The mere preponderance of evidence is all that is required to establish a fraudulent alteration of an instrument in writing: Coit r. Churchill, 61-296. An instruction that "previous good character is not of itself a defense, but is a circumstance which should be considered by the jury in connection with all the other evidence, and which might be able to turn the scale in favor of the defendant, but its value as defensive evidence in any given case is to be determined by the jury" held correct: State v. Donovan, 61-278. 1093. Where a person is charged with a crime which in its nature includes inferior offenses, and the evidence is such that the jury might find defendant guilty of one of the inferior offenses, the court should instruct in regard to such inferior offenses and allow the jury to find according to the evidence: State v. Kegan, 17 N. W. Rep., 179. But failure to instruct SEC. 4431. as to lower degrees will not be error where there is no evidence which would support a conviction of a lower degree: State v. Cole, 17 N. W. Rep., 183. Failure of the court to instruct the jury in accordance with the provisions of this section, is error sufficient to work a reversal: State v. Jay, 57-164. [By a reference to the corresponding section in the Revision it is evident that the word "submitted" in this section should be "dismissed." The sections are otherwise identical, and the Code Commissioners' Report does not indicate that any change was intended.] SEC. 4455. 1097. Where, after evidence in a a case had been produced, the judge, home to the effect tegram from his sick, adjourned court for a few days and went to his home, and on the day to which court was adjourned, by telegram adjourned court over the term, held that there was sufficient SEC. 4460. cause to warrant adjournment in the discretion of the judge, and that the defendant could not on the subsequent trial plead a previous jeopardy: State v. Tatman, 59-471. 1098. Where the jury, without consent such verdict against defendant's obof defendant, sealed up their verdict jection: and separated, held, that it was er ror for the court to receive and record/55-364. The State v. Callahan, a bill of exceptions, must be made at the time of the trial, or at such time as the court may fix; otherwise the evidence may be stricken out on appeal: The State v. Newcomb, 56–335. 1103. The court may make reasonable and provide that upon a sufficient rules relating to practice upon appeals | showing they may be waived or mod |
