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 conviction 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, 38-110): 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 a 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. A defendant cannot waive jury | court: State v. Carman, 18 N. W. trial and cant to a trial by the four, 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. SEC. 4374. 1082. To justify a reversal of the case for [ there was an abuse of the discretion the action of the judge in overruling reposed in the court in determining a motion for a change of venue, the the same: State v. Williams, 18 N. record must show affirmatively that W. Rep., 682. 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 attorney 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 estab-establish his guilt, the defendant is lish an alibi, the burden of proof is only required to introduce sufficient upon him, and it cannot be estab- evidence as to having honestly come lished except by a preponderance of into possession of the goods, to raise · evidence. This rule does not abro- a reasonable doubt of guilt: The gate the doctrine of reasonable doubt. State v. Richart, 57-245. 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. 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 v. 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 all the evidence in a case had been produced, the judge, on receipt of a telegram from his home to the effect that his wife was 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: The State v. Callahan, and separated, held, that it was error for the court to receive and record SEC. 4481. 55-364. 1102. The court may make reasonable and provide that upon a sufficient rules relating to practice upon appeals | showing they may be waived or mod ified, and it having provided that the evidence on an appeal must be abstracted and the abstract printed, it will not consider a case not presented in accordance with these rules, unless application for the waiver of such rules has been duly made: State v. Day, 58-678. In the absence of assignment of error and of argument in criminal cases, the appellate court is required to examine the record and render such judgment upon it as the law demands, but the court will not enter into a discussion of imaginary errors: State v. Quinn, 19 N. W. Rep., 256. A purely technical objection, as, for instance, the erroneous discharge of one grand jury and the summoning of another, by which the indictment was found, in the absence of any objection to the second except the SEC. 4539. discharge of the first, will not be ground for a reversal: State v. Hughes 58-165. Where a defendant was convicted upon an indictment which charged in two counts forgery and the uttering of forged paper, and did not object to the indictment on the ground of duplicity, in view of a decision of the supreme court on that point which was afterward overruled, held, on appeal, that although the court would not raise the question of duplicity, it would reduce the sentence to what would have been proper on the first count alone: State v. Henry, 59 391. The supreme court will not interfere to reduce a sentence claimed to be excessive where all the evidence in the lower court is not before it: State v. Buck, 59-382. 1111. In case of appeal by the state, and to defendant: The State v. Vail, reversal, it is improper to tax costs 57-103. SEC. 4559. 1113. It is not necessary that the accomplice be corroborated in every material fact. If the jury are satisfied that he speaks the truth in some material part of his testimony, in which he is confirmed by unimpeachable SEC. 4560. The court is to determine whether evidence is corroborative, that is, whether it is competent, and the jury is to pass upon the credibility of the corroborating witnesses, and the weight of their testimony. Instruction to the effect that the jury were to determine whether the testimony of the prosecutrix was sufficiently corroborated, etc., held, correct: The State v. Bell, 49-440. Mere opportunity to have sexual intercourse does not amount to sufficient corroboration: The State v. Araah, 55-258; The State v. Smith, 54-743. In a bastardy proceeding, the doc evidence, this may be ground for them to believe that he also speaks the truth in other parts as to which there may be no corroboration: The State v. Allen, 57–431. trine of State v. Danforth, 48-43, was not held applicable in case of a child two years old, and it was held that a child of that age might be shown to the jury and its family resemblance, if any, to defendant, considered by them as tending to prove that defendant was its father: The State v. Smith, 54-104. Evidence that prosecutrix was bruised, &c., and made complaint, would not tend to connect defendant. with the commission of the offense, and therefore should not be considered as tending to corroborate the testimony of prosecutrix: State v. Stowell, 60-535 1114. SEC. 4571. That a defendant held to answer for | his bail bond: The State v. Bryant, one crime is indicted for a higher | 55–451. crime does not release the surety on |