entered under the title of the action to which they relate, and at the time when they occurred, except that bills of exceptions in regard to the rulings on questions of law or evidence need not be entered until after the judgment, unless required by the justice or one of the parties; such entries in a justice's docket, or a transcript thereof, certified by the justice or his successor in office, shall be evidence to prove the facts stated therein.

5560 (1088). A justice must keep an alphabetical index to his docket, in which must be entered the names of parties to each judgment, with reference to the page of the entry; the names of the plaintiffs must be entered in the index in the alphabetical order of the first letter of the family names; he shall number the cases progressively upon his docket, and shall correspondingly number the papers in each case; he shall keep the entire papers in each action together and in packages of a proper and convenient size, and in the order in which the cases are numbered on his docket.

5561 (1089). It is the duty of every justice, upon the expiration of his term of office, to deposit with his successor his official docket, as well his own as those of his predecessor which may be in his custody, together with all files and papers, laws and statutes pertaining to his office, there to be kept as public records and property. If there be no successor elected and qualified, or if the office become vacant by death, removal from the county, or otherwise, before his successor is elected and qualified, the docket and papers in the possession of such justice must be deposited with the nearest justice in the county, there to be kept until a successor be chosen and qualified, then to be delivered over to such successor on request.

5562 (1090). A justice receiving by succession or on deposit, any such docket, papers, and laws, shall, if requested, give a receipt therefor to the person from whom he receives the same.

5563 (1091). The justice with whom the docket of another may be deposited, either during vacancy or as a successor, is hereby authorized, while having such docket legally in his possession, to issue execution on any judgment there entered and unsatisfied, and not docketed in the district court, in the same manner and with the same effect as the justice by whom the judgment was rendered might have done; to take bail in appeals or for stay of execution, to issue certified transcripts of judgments on such docket, and proceed in all cases in like manner as if the same had been originally had or instituted before him.

5564 (1092). In case of sickness or other disability, or necessary absence of a justice, at the time appointed for trial, another justice of the same county may, at his request, attend in his behalf, and shall thereupon become vested with the powers, for the time being, of the justice before whom the summons was returnable. In that case the proper entry of the proceeding before the attending justice, subscribed by him, must be made in the docket of the justice before whom the writ was returnable. If the case be adjourned, the justice before whom the summons was returnable must resume jurisdiction.

5565 (1093). The summons, execution, and every other paper made or issued by a justice must be filled up without a blank to be filled by another; otherwise it is void.

5566 (1094). A justice, at the request of a party, and on being satisfied that it is expedient, may specially depute any discreet person of suitable age, and not interested in the action, to serve a summons or execution with or without an order to arrest the defendants or to attach property. Such deputation must be in writing on the process.

A justice has no general power to appoint a constable. 15, 522 (19 N. W., 504). A deputation in these words: "The State of Nebraska to Job Hathaway, of said county, specially deputized to serve these papers, Greeting," held, sufficient. 12, 41 (10 N. W., 466).

5567 (1095). The person so deputed has the authority of a constable, in relation to the service, execution and return of such process, and is subject to the same obligation, but there can be no fee for his services taxed in the bill of costs.

5568 (1096). A justice may punish as for contempt, persons guilty of the following acts, and no others: First-Disorderly, contemptuous, or insolent behavior toward the justice, tending to interrupt the due course of the trial or other judicial proceedings before him. Second-A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. Third-Willful resistance in the presence of the justice, to the execution of a lawful order or process made or issued by him.

See ante, sec. 5234.

5569 (1097). A warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the justice, when an opportunity to be heard in his defense or excuse must be given. The justice may thereupon discharge him or may convict him for the offense and adjudge a punishment by fine or imprisonment, or both; such fine not to exceed twenty dollars, and such imprisonment ten days.

5570 (1098). The conviction, specifying particularly the offense and the judgment thereon, must be entered in his docket; a warrant of commitment to the jail of the county, until the fine be paid, or for the term of imprisonment, may then be issued; such warrant must contain a transcript of the entry in the docket, and the same must be executed by any constable or sheriff to whom it may be given, and by the jailer of the county.

5571 (1099). When a person intending to bring an action before a justice of the peace is a non-resident of the county in which he intends to commence such action, the justice may, previous to his issuing process, require such person to give security for costs of suit, which may be done by depositing a sum of money, deemed by the justice to be sufficient to discharge the costs that may accrue in the action, or by giving an undertaking, with security approved by the justice, payable to the adverse party, for the payment of all costs that may accrue in the action. If any plaintiff or plaintiffs, after commencing an action before a justice in the county in which he or they reside, afterwards remove out of the county, the justice may require such plaintiff or plaintiffs to deposit a sum of money, equal to the costs that have accrued, and that probably will accrue, or require, in place thereof, that such party give sufficient security for all costs that have accrued, or which may accrue in the action, and in default to do either, shall enter a nonsuit against the plaintiff or plaintiffs.

5572 (1100). In all actions instituted before a justice of the peace, founded upon any bond, bill, promissory note, or other instrument of writing, for the payment of a sum of money certain, of which the whole amount of money promised therein is due, it shall be the duty of the plaintiff, his agent or attorney, to file said bond, bill, promissory note, or other written evidence of indebtedness, upon which said suit is brought, with such justice of the peace; and if, upon the trial, judgment shall be entered thereon in favor of the plaintiff, such bond, bill, promissory note, or other instrument in writing shall be retained by the justice so rendering judgment, who shall endorse thereon the sum for which he shall have entered judgment (provided the same shall in nowise exceed one hundred dollars), and shall subscribe his name thereto. And upon payment, or tender of the amount of such payment, together with the costs accruing thereon, or securing the payment of the same by putting in bail for the stay of execution, it shall not be lawful for the plaintiff to institute any other suit or suits upon such bond, bill, promissory

note, or other instrument of writing, for the recovery of any other sum or sums, the payment of which is secured by the same bond, bill, promissory note, or other written evidence of indebtedness; Provided, That when an appeal shall be taken from the judgment of such justice, it shall be his duty to transmit any bond, bill, promissory note, or other written evidence produced before him on trial, to the clerk of the district court to which such cause shall have been appealed, on or before the second day, of the term of the court next after taking such appeal; Provided, also, That nothing herein contained shall be construed to lessen or in any wise affect the right which any creditors now have to demand from any justice of the peace any joint and several obligation, for the purpose of prosecuting any party to said obligation, other than the party against whom judgment may have been rendered.

A justice has jurisdiction in actions on note or other instrument in writing up to $200. 18, 365 (25 N. W., 364). Cited, 13, 227 (13 N. W., 207).

Sec. 5573. "An act concerning the mode of proving written instruments before justices of the peace." 1873. In force February 18. G. S. p, 717.

5573. That in all civil actions before justices of the peace, in which the defendant has been served with summons in this state, it shall not be necessary to prove the execution of any bond, promissory note, bill of exchange, or other written instrument, or any endorsement thereon, upon which the action is brought, or set-off or counter-claim is based, unless the party sought to be charged as the maker, acceptor, or endorser, of such bond, promissory note, or bill of exchange, or other written instrument, shall make and file with the justice of the peace, before whom the suit is pending, an affidavit that such instrument was not made, given, subscribed, accepted, or endorsed by him.

Proof of execution need not be made unless denied as here provided. 18, 186 (24 N. W., 727). Cited, 14, 250 (15 N. W., 216).

5574 (1101). It shall not be lawful for any justice of the peace to purchase any judgment upon any docket in his possession; and for so doing, and for every such offense such justice shall forfeit and pay a sum not more than fifty dollars, nor less than ten dollars, to be recovered by an action before any court having jurisdiction thereof, and when collected, shall be paid into the treasury of the county where such offense was committed.

5575 (1102). The provisions of this title do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment and determination in all respects as if it had not been adopted.

5576 (1103). Justices of the peace shall have jurisdiction in all cases where the sum in question does not exceed two hundred dollars, except in cases limited in this title.

Raised from one hundred dollars, 1881, p. 209. The words "sam in question" cannot mean the amount claimed by plaintiff. 11, 464 (9 N. W., 637); 15, 668 (19 N. W., 508).

CRIMINAL CODE.*

PART I.-CRIMES AND OFFENSES.

CHAPTER I.-ACCESSORIES IN FELONY.

5577 (1). 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.

5578 (2). 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.

8, 88.

Accessories after the fact will not warrant conviction under an indictment for murder.

CHAPTER II.-HOMICIDE AND FOETICIDE.

5579 (3). 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 willful 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.

Murder may be prosecuted by information instead of indictment. 29, 440 (45 N. W., 451). Burden of proof in this crime does not shift; every essential element of charge must be established 24, 624 (39 N. W., 790). Killing must have been done not only purposely, but also with deliberation and premeditation. 14, 568 (17 N. W., 115). 22, 559 (35 N. W., 384). Murder in first degree restricted to cases where deliberation was shown to have taken place before commission of crime. 6, 136; 24, 623 (39 N. W., 790). Malice; definition; presumption; self-defense; rules; degree of crime question for jury. 24, 838 (40 N. W., 420). Malice defined. 23, 756 (37 N. W., 630). See 6, 145; 16, 352 (20 N. W., 289).

5580 (4). 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 thereof, shall be imprisoned in the penitentiary not less than ten years, or during life, in the discretion of the court. See 15, 214 (18 N. W., 129); 18, 64 (24 N. W, 390); 26, 387 (41 N. W., 951).

"An act to establish a criminal code." 1873. In force September 1. G. S., p. 719 This act is substantially an adoption of the criminal code of Ohio, and the construction given to it by the courts of that state is bind. ing here. See 18, 73 (24 N. W., 390). Later acts which do not expressly amend this code, but whose subject-matter is analogous to some of its provisions, are inserted in appropriate places and may be distinguished from the original by the absence of duplicate section numbering.

PREVIOUS CRIMINAL CODES.

1. Criminal code (being part fourth of the code of Iowa). 1855, p. 225.

"

2. "An act to establish a criminal code for the territory of Nebraska.' 1858, p. 41.

3. The criminal code adopted as a part of the Revised Statutes of 1866 (p. 592). This appears to have been mainly a reenactment, with additions, of the criminal code of 1858 which it repeals (p. 683). (1123)

5581 (5). 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.

5582 (6). Any physician or other person who shall administer, or advise to be administered, to any pregnant woman with a vitalized embryo or foetus, 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 foetus, or mother, in consequence thereof, be imprisoned in the penitentiary not less than one nor more than ten years.

CHAPTER III.-FIGHTING BY AGREEMENT.

5583 (7). 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 penetentiary not less than one year nor more than ten years, and pay the costs of prosecution.

5584 (8). 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 costs of prosecution.

Fine reduced from fifty and one hundred dollars. 1875, p. 21.

5585 (9). 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.

5586 (10). [Affray.]—If any two persons shall agree and willfully 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.

5587 (11). 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 rape and shall be imprisoned in the penitentiary during life.

5588 (12). If any person shall have carnal knowledge of any other woman,