SEC. 1109. [Trial-Judgment-Review.]-SEC. 4. The court in which such action may be brought shall hear and determine the matter upon the testimony according to justice and right, as upon the amicable settlement of a controversy, and shall render award and judgment against the claimant, or the state, as upon the testimony right and justice may require. Either party may take their judgment, by proceedings in error, to the supreme court for review.

SEC. 1110. [Judgment certified to legislature.]—SEC. 5. On the first day of each regular session of the legislature the clerks of the several district courts shall transmit a full and complete statement of all claims adjudicated in said courts during the two years previous, certified by himself and signed by the judge of such court, showing the claimant, the amounts claimed and the judgment rendered for or against the claimant.

SEC. 1111. [Place of trial.]-SEC. 6. The state may be sued in the district court of the county wherein the capital is situate, in any matter founded upon or growing out of a contract, expressed or implied, originally authorized or subsequently ratified by the legislature, or founded upon any law of the state. The petition in such a case shall be as provided in section two of this act, summons shall issue and be served in the same manner as hereinbefore provided, and the rules of pleading and practice in regard to other civil actions in the district court shall be observed in all actions by or against the state, as far as applicable, except as otherwise herein provided.

SEC. 1112. [Set-off against state.]-SEC. 7. In any civil action instituted by the state, except in actions for the collection of revenue, or for school or other trust funds, or against defaulting officers and their bondsmen, the defendant may, as matter of defense, plead any set-off, counter claim or cross demand that he may have arising to him in his own right, and upon which an action could be maintained by him against the state.

SEC. 1113. [Priority of trial-Attendance of witnesses.]-SEC. 9. Civil actions to which the state is a party shall, on motion of counsel on behalf of the state, have priority of trial over other civil actions; and the several district courts having jurisdiction to try actions to which the state is a party, shall have power to compel attendance of witnesses, as is now had by such courts in other civil actions, and on payment of fees and mileage by the party desiring their attendance, may compel the attendance of witnesses from any county within the state.

SEC. 1114. [Fraud in proof of claim-Penalty.]-SEC. 9. Any person who corruptly practices, or attempts to practice, any fraud against the state in the proof, statement, establishment or allowance of any claim or cause of action, or any part thereof, in the matter out of which the same arose, shall ipso facto forfeit the same to the state; and it shall be the duty of the court in such case to find specifically that fraud was practiced, or attempted to be practiced, and to render judgment of forfeiture, and that the claimant be forever barred from prosecuting the same against the state, and for costs.

SEC. 1115. [Fees of officers.]-SEC. 10. The fees of sheriff, the clerk, or other officers, or of witnesses in claims or suits to which the state is a party, shall be the same, and be paid and taxed in the same manner as in other civil actions in the district courts.

SEC. 1116. [Attorney for state.-SEC. 11. It shall be the duty of the attorney general to appear and defend actions or claims against the state. He may require the assistance of the district or prosecuting attorney of the district or county wherein the action is brought, and in any case of importance or difficulty the governor or chief officer of the department or institution to which it relates, may retain and employ a competent attorney to appear on behalf of the state.

SEC. 1117. [Judgment certified to auditor-Payment-Stay.] SEC. 12. The court by which any judgment is rendered against the state, shall certify the same to the auditor of public accounts, who shall pay the same from any special fund or appropriation applicable thereto, and if none such have been provided or made, then from any appropriations made to the department or insti

tution, relating to which the cause of action arose; Provided, That a certificate of the auditor of public accounts or of the chief officer of such department or institution that the current appropriations will not permit the payment of such judg ment without great public inconvenience, shall operate as a stay of such judgment until the adjournment of the next regular session of the legislature; and in case of such stay being claimed or taken, interest shall run on such judgment from its date at the rate of ten per centum per annum.

SEC. 1118. [Same Against claimant-Docketed where.]-SEC. 13. In any action in which a judgment is rendered in any sum, or for costs against the claimant, the clerk of the court in which such judgment was rendered shall make and transmit a certified copy thereof on application of the attorney general, or other counsel on behalf of the state, to the clerk of the district court of any county within the state, and the same shall thereupon be filed and docketed in such court and become and be a judgment thereof; and all judgments against the claimant' or plaintiff shall be collected by execution as other judgments in the district courts.

SEC. 1119. [Error-Appeal-Proceedings-Supersedeas.]-SEC. 14. Proceedings in error or appeal from the several district courts to the supreme court, as in other civil cases, may be taken by either party within the same limitations of time as in other civil actions. No appeal or supersedeas bond shall be required of the state, and the filing of notice signed by the governor, or chief officer of the proper department, or by the attorney general, or counsel for the state, of intention to take such proceedings, shall operate as a supersedeas of such judg ment, and until the time that final judgment in the court of review be rendered in said cause, but the same shall not so operate longer than six months, unless proceedings in error or appeal are taken, and in case of the affirmance of such judg ment or failure on the part of the state to take proceedings in error or appeal, after notice thereof, interest shall run and be computed on such judgment from its date.

SEC. 1120. [Payment-Bar of claim.] - Payment and receipt of the amount due on any judgment rendered in any action brought under the provisions of this act, shall be a full discharge of the state in such matter, and any final judgment shall forever bar further controversy upon the subject thereof.

SEC. 1121. [Action, when brought-Limitation.]-SEC. 16. Every claim and demand against the state shall be forever barred, unless action be brought thereon within two years after the claim arose; Provided, That claims now subsisting shall not be barred until two years after the taking effect of this act, and every claim and demand in behalf of the state except for revenue, or upon official bonds, or for loans or moneys belonging to the school fund, or loans of school or other trust funds, or to lands or interest in lands thereto belonging, shall be barred by the same lapse of time as is provided by the law in case of like demands between private parties; Provided, however, That in any action on be half of the state the defendant may plead and avail himself of any set-off or counter claim growing out of or connected with the same matter or transaction upon which action is brought against him. [Amended and took effect Feb. 28,

1881.1

SEC. 1122. [Change of venue.]-SEC. 17. Change of venue may be taken from the district court of the county in which the action is brought as in other civil cases, on payment of the costs of removal, by the party making application for such change of venue.

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 FŒTICIDE.

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.

CHAP. II. Statutory distinction in degrees of; premeditation and malice defined. 6 Neb. 139. 9 Id. 303. Murder in first degree: evidence. 6 Neb. 140. 14 Id. 568. 15 Id. 213. Verdict fixing that degree of criminality is conclusive. 9 Neb 248. Act of killing required to be "done with reflection" and "conceived beforehand." 14 Neb. 569. Evidence, Held Insufficient to show deliberation. 6 Neb. 141. 14 Id. 571. Conviction may be had for murder in second degree or manslaughter. 4 Neb. 552. Murder in second degree; where fact of killing is shown, and no explanatory circumstance is shown, malice presumed and degree established. 5 Neb. 384. 6 Id. 140. A malicious killing, although done upon a sudden quarrel and in the heat of passion, is at least murder in the second degree. 15 Neb. 214. Evidence must show that prisoner either personally committed the deed or else present aiding and abetting therein; facts showing him to be accessory only will not warrant conviction under indictment for murder. 8 Neb. 82. Malice presumed where no considerable provocation appears. 5 Neb. 284. 14 Id. 569. Person may resist unlawful attempt at arrest, and if necessary, rather than submit, may lawfully kill person making it. 14 Neb. 572. But private person may arrest one believed to have committed felony. 16 Neb. 615. Manslaughter; failure of jury to negative the fact that crime was of higher grade no ground for reversal of judgment. 6 Neb. 343. Testimony tending to show that act was committed in self-defense must be submitted to jury. 9 Neb. 165. It must appear that accused endeavored by all reasonable means, before giving the fatal blow, to escape from scene of difficulty. 14 Neb. 67. If accused have mental capacity to distinguish right from wrong in respect to particular act charged, he is responsible. 4 Neb. 409. 11 Id. 538. 14 Id. 577. Intoxication as a defense. 4 Neb. 289. 9 Id. 252. Insanity. 4 Neb. 409. 9 Id. 253. 11 Id. 414, 538. 14 Id. 546. One must be tried under law in force at time of commission of alleged offense. 16 Neb. 352. Where on a trial for murder the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and on his motion a new trial is granted, the effect of granting a new trial is to set aside the whole verdict and leave the case for retrial upon the same issues as upon the first trial. 18 Neb. 77.

871

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 fœtus, 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 fœtus, 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. 5. Evidence tending to lower grade of homicide should be submitted to jury. 18 Neb. 405. SEC. 12. Rape defined. 6 Neb. 282. 11 Id. 277. 14 Id. 207. Competency of witnesses. Id. Emission. 14 Neb. 208. Evidence. 9 Neb. 65. 11 Id. 279. 14 Id. 207. 15 Id. 386. 19 Id. 335, 731.

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 eighteen years or upwards, shall carnally know or abuse any female child under the age of fifteen 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 20 nor less than 3 years. [Amended 1887, chap. 105. Took effect July 1, 1887.]

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.-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. [1875, 2.]

SEC, 17 a. [Provoking assault.]-That any person who shall intentionally provoke or attempt to provoke an assault upon himself or another, by the uttering of grossly vile and insulting epithets applied to the assaulting party, or one so tempted to commit an assault, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, be fined in any sum not exceeding ten ($10) dollars, or be imprisoned in the county jail not exceeding ten days. [1887, chap. 102.]

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 impris onment, 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. 13. Property must be taken by force or violence and with intent to rob or steal. 19 Neb. 652. Person may be convicted of larceny. Id. SEC. 14. See 4 Neb. 552. 5 Id. 418. 6 Id. 282.

SEC. 16. See 8 Neb. 486. 17 Id. 224.

SEC. 17. See 8 Neb. 71. 11 Id. 259. 13 Id. 392. 16 Id. 193, 503.

SEO. 17 a. "An act to punish the giving provocation for assault." Laws 1887, chap. 102. Took effect

July 1, 1887.