impaneled and sworn, the trial shall proceed in the following order: First. The counsel for the state must state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it. Second. The defendant, or his counsel must then state his defense, and may briefly state the evidence he expects to offer in support of it. Third. The state must first produce its evidence; the defendant will then produce his evidence. Fourth. The state will then be confined to rebutting evidence, unless the court, for good reason, in furtherance of justice, shall permit it to offer evidence in chief. Fifth. When the evidence is concluded. either party may request instructions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it. Sixth. When the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to the jury. Seventh. The court, after the argument is concluded, shall immediately, and before proceeding with other business, charge the jury; which charge, or any charge given after the conclusion of the argument, shall be reduced to writing by the court, if either party request it, before the argument to the jury is commenced: and such charge or charges, or any other charge or instruction provided for in this section, when so written and given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case.

SEC. 479. [View of place.]-Whenever in the opinion of the court it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of the sheriff. to the place, which shall be shown to them by some person appointed by the court. While the jury are thus absent, no person other than the sheriff having them in charge, and the person appointed to show them the place, shall speak to them on any subject connected with the trial.

SEC. 480. Mistake in offense.]-When it shall appear at any time before the verdict that a mistake has been made in charging the proper offense, the accused shall not be discharged if there appear to be good cause to detain him in custody; but the court must recognize him to answer to the offense on the first day of the next term of such court; and shall, if necessary, likewise recognize the witnesses to appear and testify.

SEC. 481. Same.]-When a jury has been impaneled in a case contemplated by the preceding section, such jury may be discharged without prejudice to the prosecution.

SEC. 482. [Exceptions by defendant.--In all cases where a defendant shall feel himself aggrieved by any opinion or decision of the court, he may present his bill of exceptions thereto; and it shall be the duty of the court to sign and seal the same; and the taking, preparing, and signing, and sealing of said bill, shall be governed by the rules established in such matters in civil cases. Where the ground of exception is that the verdict is not sustained by sufficient evidence, or is contrary to law, and the court has overruled a motion for a new trial made on that ground, the bill of exceptions shall set out the evidence. The bill of exceptions, when signed and sealed, shall be made a part of the record, and shall have the same force and effect as in civil cases.

SEC. 483. [Same by prosecuting attorney.-The prosecuting attorney may take exceptions to any opinion or decision of the court during the prosecution of the cause; and the bill containing the exceptions, upon being presented, shall, if it be conformable to the truth, be signed and sealed by the court; which

SEC. 479. The view should be had in presence of prisoner, unless he waive the privilege. 5 Neb. 35. SEC. 482. See section 311 civil code, p.571. The want of an exception in a capital case will not necessarily deprive the prisoner of his right to a new trial for errors of court prejudicial to him. 9 Neb. 302 and see 4 Neb. 530. The taking and preserving of exceptions governed by same rule as civil cases. 7 Neb. 329. If papers are struck from the files they cease to be a part of the record for any purpose, unless brought into it by order of court which may be dome by bill of exceptions. 7 Neb. 355.

SEC. 483. Cited 5 Neb. 587.

bill shall be made a part of the record, and be in all respects governed by the rules established as to bills of exceptions in civil cases, except as herein provided.

SEC. 484. [Conduct of jury after case submitted.]-When a case is finally submitted to the jury, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court. The officer having them in charge shall not suffer any communication to be made to them, or make any himself, except to ask them whether they have agreed upon a verdict, unless by order of the court; nor shall he communicate to any one, before the verdict is delivered, any matter in relation to the state of their deliberations. If the jury are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by any other person on the subject of the trial, or to listen to any conversation on the subject; and that it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.

SEC. 485. Discharge of jury.]—In case a jury shall be discharged on account of sickness of a juror, or other accident, or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution.

SEC. 486. When jury agreed.]-When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Before the verdict is accepted, the jury may be polled at the request of either the prosecuting attorney or the defendant.

SEC. 487. [Offense consisting of different degrees.]-Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, and upon an indictment for any offense, the jury may find the defendant not guilty of the offense, but guilty of an attempt to commit the same, where such an attempt is an offense.

SEC. 488. [Verdict--Value of property.] When the indictment charges an offense against the property of another by larceny, embezzlement, or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict, the value of the property stolen, embezzled or falsely obtained.

SEC. 489. [Verdict-Murder.]-That in all trials for murder, the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict, whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession, in open court, the court shall proceed by examination of witnesses, in open court, to determine the degree of the crime, and shall pronounce sentence accordingly.

SEC. 489 a. [Offenses committed in unorganized territory-Venire.]-SEC. 1. That it shall be lawful for the judge of any judicial district court within the state of Nebraska, where it has been made to appear to him that a

SEC. 484. If jury have been permitted to separate, it will be presumed in the absence of a record to the contrary, that they were admonished by the court. 3 Neb. 371. 8 Neb. 413. Separation may be had in capital cases. 8 Neb. 92, 413.

SEC. 486. A verdict signed by all the jurors is good. 7 Neb. 342. If not signed by one as foreman, it is not error to permit such signature in open court and in presence of jury. Id.. Effect of privy verdict. 10 Neb. 107. An omission to designate the defendant as the guilty party renders verdict void. 6 Neb. 341. An omission, in a verdict of "guilty of murder in the first degree," of the words, "in manner and form," etc., does not render it void. 5 Neb. 382. Jury should not be permitted to return a statement that they had "agreed to disagree." 10 Neb. 104.

SEC. 487. Under an indictment for murder in the first degree when jury find accused guilty of manslaughter, the failure to negative the fact that the crime was of a higher grade than that found is no ground for reversal of judgment. 6 Neb. 342.

SEC. 489 a. "An act to authorize the judge of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any unorganized county or territory of this state, or in any county where no district courts are held, and to provide for the payment of fees and expenses incurred in the arrest and prosecution of such persons, and to repeal an act entitled 'An act to authorize the judges of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any unorganized county, or in any county where no district courts are held.' Approved Feb. 25, 1875." [Laws 1875, page 31.] Approved Feb. 24, 1879. See 4 Neb. 20. 11 Neb. 1.

crime has been committed amounting to felony, within any unorganized county or territory, or in any county where no terms of the district court of this state are held, attached to or in his said district, for judicial or other purposes, to designate the county in his district wherein the alleged offense may be inquired into by the grand jury, and in case an indictment found, the person or persons so indicted, tried; Provided, Nothing herein shall prevent the person or persons indicted, upon a legal and proper application, removing the trial thereof to some other county in the same judicial district; And provided, further, That all costs and expenses for the arrest and prosecution of such person or persons shall be paid out of the general fund of the state; And provided, further, That no bill for costs or expenses shall be audited and paid, without the certificate of the presiding judge of said district that said services have been performed, and that the account is correct. [1879, 62.]

CHAPTER XLVI.-MOTIONS FOR NEW TRIAL AND FOR ARREST OF JUDGMENT.

SEC. 490. [Causes for new trial.]—A new trial, after a verdict of conviction, may be granted on the application of the defendant, for any of the following reasons, affecting materially his substantial rights: First. Irregularity in the proceedings of the court, or the prosecuting attorney, or the witnesses for the state, or any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial. Second. Misconduct of the jury, or the prosecuting attorney, or of the witnesses for the state. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. That the verdict is not sustained by sufficient evidence or is contrary to law. Figth. Newly discovered evidence material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial. Sixth. Error of law occurring at the trial.

SEC. 491. [Motion.]--The application for new trial shall be by motion upon written grounds, filed at the term the verdict is rendered, and shall, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. or [be] within three days after the verdict was rendered, unless unavoidably prevented. In assigning the grounds of such motion, it shall be sufficient to assign the same in the language of the statute, and without further or other particularity. [Amended Feb. 28. Took effect June 1, 1881.]

SEC. 492. [Affidavit.]-The causes enumerated in subdivisions two, three, and five of section four hundred and ninety, must be sustained by affidavits showing their truth, and may be controverted by affidavits.

SEC. 493. [Arrest of judgment.]-A motion in arrest of judgment may be granted by the court for either of the following causes: First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court. Second. That the facts stated in the indictment do not constitute an offense.

SEC. 494. [Same-Effect.]-No judgment can be arrested for a defect in form. The effect of allowing a motion in arrest of judgment shall be to place the defendant in the same position with respect to the prosecution, as before the indictment was found. If, from the evidence on the trial, there shall be sufficient reason to believe him to be guilty of an offense, the court shall order him to enter into a

SEC. 490. If evidence is conflicting, verdict will not be set aside. 4 Neb. 76. Nor unless it is clearly wrong. 10 Neb. 448. Otherwise, where there is no sufficient testimony to support it. 9 Neb. 66. All reasons for new trial should be set forth. 4 Neb. 228. And errors specifically assigned. 8 Neb. 88. [But see amend ment to sec. 491.] New trial will not be granted on ground of newly discovered evidence, where it would be merely cumulative. 8 Neb. 414. Admission of illegal testimony, without objection, no ground for new trial 7 Neb. 353. The granting of a new trial is within the exclusive discretion of trial court, and if that court, on application duly made, refuse to act upon it, it will be compelled to do so, unless such action could advantage the prisoner only by overriding a well established rule of criminal procedure. Id. 355. See note to sec. 314 civil code, p. 572.

SEC. 493. The motion applies only to the jurisdiction of the court and sufficiency of the indictment. 4 Neb. 230.

recognizance, with sufficient security conditioned for his appearance at the first day of the next term of the same court; otherwise the defendant shall be discharged.

CHAPTER XLVII.—JUDGMENT AND SENTENCE.

SEC. 495. [Duty of court.]-Before the sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be pronounced against him.

SEC. 496. [Same.]-If the defendant have nothing to say, or if he show no good and sufficient cause why judgment should not be pronounced, the court shall proceed to pronounce judgment as provided by law.

SEC. 497. [Fines,]-Whenever a fine shall be the whole or part of a sentence, the court may, in its discretion, order that the person sentenced shall remain confined in the county jail until the amount of such fine and costs are paid.

SEC. 498. [Sentence in certain cases.]-In all cases when any person shall be convicted of any offense by this code declared criminal, and made punishable by imprisonment in the penitentiary, the court shall declare in their sentence, for what period of time within the respective periods prescribed by law, such convict shall be imprisoned at hard labor in the penitentiary; and shall moreover determine and declare in their sentence, whether any, and if any, for what period of time such convict shall be kept in solitary confinement in the cells of the penitentiary, without labor.

SEC. 499. [Recognizance to keep the peace.]-Any person convicted of any offense against the provisons of this act, may be required by the court to enter into a recognizance with sufficient surety, in such sum as the court may deem proper, to keep the peace and be of good behavior, for such length of time. not exceeding two years, as the court shall direct; and the court may order such person to stand committed until such order be complied with, or such person be otherwise discharged by due course of law.

SEC. 500. [Committal until fine and costs paid.]—In all cases wherein courts or magistrates have now, or may hereafter have, the power to punish offenses either in whole or in part, by requiring the offender to pay a fine or costs, or both, the said courts or magistrates may make it a part of the sentence that the party stand committed and be imprisoned in the jail of the proper county until the same be paid, or secured to be paid, or the defendant is otherwise discharged according to law.

SEC. 501. [Costs upon conviction.]-In every case of conviction of any person for felony or misdemeanor, it shall be the duty, of the court or magistrate to render judgment for the costs of prosecution against the person convicted.

SEC. 502. [Sentence to county jail.]—When any court or magistrate shall sentence any convict to imprisonment in the jail of the county as a punishment for the offense committed, the judgment and sentence shall require that the convict be imprisoned in the cell of the jail of the county, or that he be kept at hard labor in the jail, in the discretion of the court or magistrate, and when the imprisonment is to be without labor, the sentence may require the convict to be fed on bread and water only, the whole or any part of the term of imprisonment.

CHAPTER XLVIII.-PROCEEDINGS IN ERROR.

SEC. 503. [Suspension of execution.]-When a person shall be convicted of an offense, and shall give notice to the court of his intention to apply for a writ of error, the court may, at its discretion, on application of the person so convicted, suspend the execution of the sentence or judgment against him until

SEC. 495. If this section is not complied with judgment will be set aside and cause remanded with instructions to render verdict as required by law. 4 Neb. 232.

SEC. 496. Within the limits fixed by law, the term of imprisonment rests with the judge of the trial court. 6 Neb. 550.

the next term of the court, or for such period, not beyond the session of the court, nor beyond the next term of the supreme court, as will give the person so convicted a reasonable time to apply for such writ; Provided, When any such conviction is of an offense the punishment whereof is capital, at least one hundred days shall intervene between the date of such sentence and judgment, and the day appointed for the execution thereof.

SEC. 504. Same-Misdemeanor.]-No court shall suspend the execution of the sentence or judgment against any person convicted and sentenced for a misdemeanor, unless such person shall enter into a recognizance with such security as the court may require, conditioned that the person so convicted and sentenced shall appear at the next term of such court, and from term to term, until the case shall be determined, and abide the judgment or sentence of the court.

SEC. 505. [Same-Felony.]-Whenever a person shall be convicted of a felony, and the judgment shall be suspended as aforesaid, it shall be the duty of the court to order the person so convicted into the custody of the sheriff, to be imprisoned until the case in error be disposed of. If a person so convicted shall escape, the jailer or other officer from whose custody the escape was made, may return to the clerk of the proper court, the writ by virtue of which the convict was held in custody, with information of the escape endorsed thereon, whereupon said clerk shall issue a warrant stating such conviction, and commanding the sheriff of the county to pursue after such person into any county in the state; and said sheriff shall take such person and commit him to the jail of such county,

SEC. 506. [Term of suspense.]-If no writ of error be allowed by the next term of the court after the sentence was pronounced, the court shall, at such term, carry the same into execution; or if no such writ be allowed by the expiration of the time of suspension, the judgment shall be carried into effect by the proper officers, the same as it would have been previously, had there been no suspension.

SEC. 507. [Judgment affirmed.]-If a writ of error be allowed, and on the hearing the judgment of the court in which the trial was had shall be affirmed, such court shall carry into execution the sentence pronounced against the defendant at the next term after the judgment of affirmance is rendered.

SEC. 508. [Writ of error, how allowed.-In criminal cases not punishable with death, after final judgment, writs of error may, on good cause shown, be allowed on the application of the defendant, by the supreme court, or any judge thereof in vacation, as in civil cases; and in criminal cases punishable with death, writs of error may be allowed on application, by said court when in open session, or by any judge thereof in vacation.

SEC. 509. [Suspension-Capital cases.]-In all cases of conviction where the punishment shall be capital, the judges or court allowing such writ of error shall order a suspension of the execution until such writ of error shall be heard and determined; upon hearing such writ of error, they shall order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence, as the nature of the case may require.

SEC. 510. [Returnable in cases of felony.]—In all cases of conviction for a felony, the court, judge, or judges allowing the writ of error, shall order the same to be made returnable before the supreme court and shall order a suspension of the execution of said sentence.

SEC. 511. [Same-Misdemeanor.]-In cases of conviction for misdemeanor in the district court, the court or judge allowing the writ of error shall make it returnable as in cases of conviction of felony, and may order a suspension of the execution of the sentence upon the defendant on his entering into a recognizance before the clerk of the court in which the cause was tried, with sufficient

SEC. 508. Error must be affirmatively shown. 5 Neb. 354. In supreme court examination of questions relating to evidence is confined to such as were distinctly raised and passed upon in the lower court. 9 Neb. 250. An order refusing discharge of prisoner before final judginent, is not reviewable on writ of error. 10 Neb. 104. Proceedings must be instituted within one year after judgment. Neb. 294.

SEC. 509. May remand cause for sentence if sec. 495 is not complied with. 4 Neb. 232.