Coil v. State. jurisdiction to hear and try the cause on appeal. While it is suggested that the proceeding had in the district court is in the nature of an original action begun in that court to secure the probate of the will and, therefore, without jurisdiction, from the entire record, it is obvious that its jurisdiction as an appellate court was exercised and the cause tried on appeal from the order made in the county court, to which it was remanded on the final hear ing thereof. The judgment or order complained of is AFFIRMED. GEORGE COIL V. STATE OF NEBRASKA. FILED JUNE 5, 1901. No. 11,367. 1. No Valid Constitutional Objection to Prosecution of Capital Offense by Information. There are no valid objections, by reason of any of the provisions of the constitution, to the prosecution of one charged with a capital offense upon an information by the county attorney, under the provisions of chapter 54 of the Criminal Code. Dinsmore v. State, 61 Nebr., 418, followed. 2. Where the Record Discloses that the Jury Were Placed in Charge of a Sworn Bailiff, Such Custody Is Presumed to Continue in Absence of Countervailing Proof. Where the record, in a prosecution charging the defendant with a capital offense, discloses that at the beginning of the trial the jury were placed in charge of a sworn bailiff, and were in charge of a sworn officer at subsequent stages of the trial, and there is nothing to warrant the inference that they were allowed to separate at any time during the trial, and no complaint is made during the trial, nor in the motion for a new trial, an objection, made for the first time in this court, that it is not shown by the record that the jury were kept in charge of an officer, is unavailing. 3. Juror Having Been Called Within Two Years Ground for Challenge. It is a good cause for challenge that a juror called to sit in a criminal case has been summoned and served as a juror in the same court within the two years preceding. 4. -: TALESMEN. The objection is good as to those called as talesmen as well as those summoned on the regular panel. 5. Right of Challenge May Be Waived. The right to challenge a juror for the cause above mentioned may be waived or lost if not interposed in apt time, or when there is lack of diligence. 62 15 62 180 62 625 Coil v. State. 6. Challenge for Cause Subject to Judicial Discretion. The ruling of a trial court in deciding a challenge for cause will not be disturbed unless an abuse of discretion is shown. 7. Error Not Presumed. Errors will not be presumed, but must affirmatively appear from the record. 8. Bill of Exceptions Not Properly Authenticated, Question Dehors the Record. Whether the trial court erred in overruling a challenge for cause, on the ground that a juror had been summoned and served as such within two years prior thereto, not interposed until after the juror had been passed for cause, and when the right to peremptory challenges was being exercised, not determined, because purported bill of exceptions is not properly authenticated. 9. Voir Dire Examination No Part of Trial. The certificate of the trial judge to a bill of exceptions "that the foregoing is all the evidence offered by either party on the trial of the cause" is not sufficient to embrace the coir dire examination of a juror. Durfee v. State, 53 Nebr., 214, followed. 10. Voluntary Confession of Prisoner Admissible in Evidence. Statements of a prisoner charged with a crime, in the nature of an admission or confession, voluntarily made, and not induced by hope or fear from those having custody of the prisoner or concerned in the administration of justice, may properly be ad mitted in evidence. 11. Error May Be Cured. Where testimony is offered, objected to, and excluded on the ground that no proper foundation has been laid, and later on the witness is recalled and the proposed testimony received, the first ruling is without prejudice, even though erroneous. 12. No Prejudicial Error of Record. Record examined, and found free of prejudicial error regarding the ruling of the court on the admission and rejection of evidence. 13. Instruction Not Prejudicially Erroneous. The use of the words "as in sound reason," in an instruction on the law of selfdefense, held not prejudicially erroneous. 14. Cowardice No Defense. It is not error to instruct the jury that one who shoots another through mere cowardice will not be justified on the ground of self-defense. 15. Instructions On Points Substantially Covered. It is not error to refuse instructions requested on points substantially covered and included in other instructions given. 16. Instructions. Instructions given and refused examined, and held to be without error. 17. Misconduct of Sheriff: RULING OF COURT: EVIDENCE. Ruling of Coil v. State. the trial court as to alleged misconduct of the sheriff during the impaneling of the jury held to be supported by the evidence and free from error. 18. Misconduct of Counsel Not Shown. Held, also, That alleged misconduct of consul for the state calling for a reversal of the case, is not shown. 19. Verdict With Request Refused: REQUEST ELIMINATED: NO PREJUDICE. Where a verdict finding a defendant guilty of murder in the second degree, and requesting that the term of imprisonment be not more than five years, is returned, which is not received by the court, and the jury retire and return the same verdict, with the request for a term of not more than five years' imprisonment eliminated, the defendant is in nowise prejudiced and has no legal ground of complaint. .0. Degree of Punishment in Its Effect upon a Verdict No Ground for New Trial. Affidavits of jurors to the effect that they believed that the jury could fix the term of imprisonment at five years, or they would not have agreed to a verdict of guilty of murder in the second degree, can not be received to impeach their verdict returned in open court, and assented to by them in a poll of the jury. 21. Verdict Can Not Be Set Aside Because Juror Misunderstood Witness. The verdict of a jury can not be impeached by one of the jurors on the ground that he misunderstood the evidence of one of the witnesses. 22. Affidavits Insufficient. Affidavits in support of the right, as alleged, of a witness to correct his testimony, held without merit, since it appears from the record that no mistake had been made. Affidavits in support of a motion for a new trial, on the ground that a witness for the state was not allowed to correct an alleged mistake in his testimony, and exception to the ruling of the court thereon, held without merit, since from the record and the affidavits, it appears that no mistake had been made. 21. Assignments of Errors. Other assignments of errors held to be not well taken. ERROR from the district court for Dawes county. Tried below before WESTOVER, J. Affirmed. Allen G. Fisher, George A. Eckles and Albert W. Crites. for plaintiff in error. Frank N. Prout, Attorney General, Norris Brown, Deputy, and Michael F. Harrington, contra. Coil v. State. HOLCOMB, J. The plaintiff in error was informed against in the district court of Dawes county on the charge of murder in the first degree. A trial to the court and jury on the issue raised by a plea of not guilty resulted in a verdict of guilty of murder in the second degree, with a recommendation of leniency in the infliction of punishment by the court. A sentence of imprisonment in the penitentiary for the period of ten years was imposed, the minimum permitted by law. From the verdict and judgment the defendant prosecutes proceeding in error in this court to secure a reversal thereof. A number of alleged errors in the trial of the case are assigned which, in so far as they are deemed essential in reviewing the case, will be noted in the order of presentation. We have carefully noted each and every error assigned and argued in the brief of counsel for defendant, and a failure to note each in detail is because they are so numerous; an opinion would be extended to an unwarranted length in the discussion of many which are not regarded as of sufficient importance to justify more than a passing notice. By a motion to quash, plea in abatement, and demurrer, the question is presented of the right of the state to proceed against the defendant upon an information, charging the crime of which he was tried, made and filed by the county attorney, instead of presentment under an indictment by a grand jury duly returned in the manner provided by law. This question has so recently been considered and passed upon by this court in the case of Dinsmore v. State, 61 Nebr., 418, that it is not thought necessary now to more than refer to that case for an exposition of our views on the subject, and the reason for holding against the contention of defendant's counsel regarding the matter in the case at bar. There are no valid objections, by reason of any of the provisions of the constitution, to the prosecution of one charged with a Coil v. State. capital offense, upon an information by the county attor ney, under the provisions of chapter 54 (secs. 578-585) of the Criminal Code. It is next urged that it is not shown by the record that the jury called to try the case was kept in charge of an officer during the trial. An examination of the record discloses that upon the first adjournment, after the impaneling of the jury began, they were placed in charge of a sworn bailiff, and thereafter, during the entire proceedings, until the verdict of the jury was returned and they discharged, they were, while not in open session of the court, in the charge of an officer of the court. There is nothing in the record to warrant the inference that the jury were allowed to separate at any time during the progress of the trial, no indication that the defendant has in this respect been in anywise prejudiced, no complaint made during the trial, nor in the motion for a new trial, and the objection is now unavailing and without merit. St. Louis v. State, 8 Nebr., 405; Polin v. State, 14 Nebr., 540. It is further contended that error was committed by the court in overruling a challenge for cause interposed by the defendant to a juror named Hilbert, called to sit in the case. From the purported record before us it is made to appear that the said juror was called into the jury-box, examined by counsel for both the state and the defendant, and by each was passed for cause. Thereafter, and when some of the peremptory challenges allowed each of the parties had been exercised by the state and by the defendant, leave was asked by the defendant's counsel, and granted by the court, to further examine this juror for cause. It was thereupon by such examination disclosed that the said Hilbert had been summoned and had served as a juror in the district court of that county within two years next preceding the time he was summoned to sit in the case at bar. The defendant challenged the juror for cause. The state resisted the challenge "for the reason that the juror was passed for cause, |