sent.-Presho State Bank v. Northwestern 1. NATURE AND ELEMENTS OF CRIME
Milling Co., 560.

116(5) (S.D.) Records cannot be correct-112(1) (Minn.) Defendant taking order for
ed by interlineation and mutilation of files.-
State v. Nystrom, 750.

202 (5) (Wis.) Probate court's decree may
be annulled when shown to be without founda-338(1) (Iowa) Logically relevant facts are
tion in law or in fact.-In re Reeve's Guard- admissible; "relevancy."-State v. McDougal,
ianship, 736.

363 (Iowa) Res gestæ cannot be deter-
204 (N.D.) Supreme Court under its pow-mined by fixed measure of time or distance.-
er of "superintending control" may control State v. Brooks, 46.
course of litigation so as to prevent injustice. Statements to be part of res gestæ must not
-State v. District Court of Stutsman County, be narrative of past occurrence.-Id.

See Assault and Battery, 92; Burglary;
Embezzlement; Grand Jury; Homicide; In-395 (Mich.) Whisky falling from defend-
dictment and Information; Larceny; Pardon; ant's person, in scuffle with officer seizing him
Perjury; Rape, 40-59; Seduction, 34 to obtain it, not admissible.-People v. Mar-

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

tive Evidence.

(E) Best and Secondary and Demonstra- 730(2) (Iowa) Error in opening statement
of prosecuting attorney to jury held cured by
admonition of court.-State v. Christianson,
462.

398 (1) (Iowa) Evidence must be the best.
-State v. Potter, 919.

400 (7) (Iowa) Parol evidence admissible
to show contents of stolen notes if lost.-State
v. Potter, 919.

(F) Admissions, Declarations, and Hear-

say.

742(2) (Neb.) Weight of accomplice's tes-
timony is for the jury.-Dyson v. State, 984.
(G) Necessity, Requisites, and Sufficiency

of Instructions.

413(1) (Iowa) Accused's self-serving dec-
larations not admissible.-State v. Brooks, 46.
Defendant's statements on returning home 770 (2) (Iowa) Defendant entitled to have
after shooting deceased held self-serving.-Id. theory explained to the jury.-State v. Brooks,
(J) Testimony of Accomplices and Code- 775(6) (1owa) Instruction on alibi held
not erroneous.-State v. Banoch, 436.

fendants.

46.

780 (1) (Neb.) Directing jury to cautious-
consider testimony of accomplice proper.-
Dyson v. State, 984.

507 (7) (Minn.) In prosecution for statu-
tory rape, the prosecutrix is not an "accom-ly
plice" within the statute requiring corrobora-
tion.-State v. Dahl, 580.

510 (Neb.) Conviction may rest on accom-
plice's uncorroborated evidence and other testi-
mony satisfying beyond reasonable doubt.
Dyson v. State, 984.

(K) Confessions.

535(1) (Minn.) Confession will not war-
rant conviction unless corroborated by inde-
pendent evidence of corpus delicti.-State v.
Wylie, 707.

(L) Evidence at Preliminary Examination
or at Former Trial.

800(4) (Iowa) Ordinarily sufficient to de-
fine crime in language of statute.-State v.
Banoch, 436.

814(3) (Minn.) It is not error to refuse
instructions not applicable to the facts.-State
v. Ford, 812.

815(4) (Neb.) Instruction omitting ele-
ments of offense erroneous.-Altis v. State,
524.

(H) Requests for Instructions.
825(3) (Minn.) Plaintiff could not object
to instruction on self-defense in absence of
request for more specific instruction.--State v.
Miller, 803.

543(1) (Mich.) Testimony of absent wit-829(1) (Minn.) It is not error to refuse
ness on preliminary trial held admissible where instructions on matters covered by others.-
witness has disappeared.-People v. Schepps, State v. Ford, 812.
508.

(M) Weight and Sufficiency.
552(2) (Minn.) Circumstances relied on for
conviction must be proved, and not presumed.-
State v. Wylie, 707.

556 (Iowa) State bound by evidence it in-
troduces.-State v. Potter, 919.

561 (1) (Iowa) Proof beyond reasonable
doubt of every essential ingredient.-State v.
Potter, 919.

829(1) (Neb.) Refusal of instruction on
matter covered by one given is not error.-
Dyson v. State, 984.

836 (Minn.) Defendant not entitled to copy
of court's charge before final argument.-State
v. Miller, 803.

XIII. MOTIONS FOR NEW TRIAL AND IN
ARREST.

919(3) (Minn.) Refusal of new trial for
misconduct of prosecuting attorney held not
abuse of discretion.-State v. Miller, 142.

561 (2) (Iowa) Indictment must allege
ownership of property, and proof must sus-919(5) (Minn.) Objection to argument
tain averment beyond reasonable doubt.-State
v. Potter, 919.

563 (Iowa) Corpus delicti may be proven
by circumstantial evidence.-State v. Kelley,

834.

XII. TRIAL.

(B) Course and Conduct of Trial in Gen-
eral.

649(4) (Minn.) Refusal to take recess to
permit defendant's counsel to confer with his
client held not error.-State v. Swan, 581.

656(3) (Minn.) Rebuke of defendant's
counsel for asking seemingly impertinent ques-
tion of state's witness held too severe.-State
v. Jensen, 581.

(C) Reception of Evidence.
678(1) (S.D.) Evidence held to show all
acts were one transaction, so that election
was unnecessary.-State v. Blair, 961.

980 (2) (Wis.) Where information charges
an offense including others on plea of guilty,
good practice requires a definite finding as to
degree of offense.-Ex parte Carlson, 722.

989 (Wis.) Accused's right to say why
sentence should not be pronounced is not a
mere formality.-Ex parte Carlson, 722.

XV. APPEAL AND ERROR, AND CER-
TIORARI.

683(1) (Neb.) Admission in rebuttal of
letter from defendant's wife to defendant held (A) Form of Remedy, Jurisdiction,
error.-Porter v. State, 1006.

(E) Arguments and Conduct of Counsel.
720 (2) (Iowa) Inaccuracies in statement
of evidence not misconduct in legal sense.-
State v. Christianson, 462.

Right of Review.

and

1023 (2) (Iowa) Ruling sustaining directed
verdict of acquittal is final though no formal
judgment entered.-State v. McDougal, 929.

1024(12) (lowa) No appeal from judg-
ment for costs against state in criminal case.
State v. McDougal, 929.

721 (5) (Mich.) Prosecuting attorney's
statement held not violation of statute forbid-
ding comment on defendant's failure to testify. (B) Presentation and Reservation in Low-
er Court of Grounds of Review.
-People v. Lowrey, 396.

722 (2) (Minn.) In prosecution for statu-1032(1) (Mich.) Assignments attacking in-
tory rape, suggestions by prosecutor as to de-
fendant's wealth, association with girls, and
drinking held improper.-State v. Friend, 241.

formation not considered where defendant
pleaded and did not question information be-
low.-People v. Sekelyn, 479.

CURATIVE ACTS.

1036(1) (Mich.) Admission of evidence not
reviewed when no objection made.-People v. See Constitutional Law, 193.
Sekelyn, 479.

on

1044 (Iowa) Admission of evidence,
promise to connect it with defendant, not ground
for reversal, in absence of motion to strike.-
State v. Christianson, 462.

DAMAGES.

III. GROUNDS AND SUBJECTS OF COM-
PENSATORY DAMAGES.

1044 (Mich.) Failure to strike testimony
not considered without motion to strike.-Peo- (A) Direct or Remote, Contingent, or Pros-
ple v. Sekelyn, 479.

Submission of cause not open to attack when
there was no motion for directed verdict and
requests recognized issue.-Id.

1055 (Mich.) Remark of counsel not con-
sidered without exception.-People v. Sekelyn,
479.

pective Consequences or Losses.
32 (Iowa) Compensation awarded for per-
sonal injuries.-Spiker v. City of Ottumwa,
465.

40 (2) (Iowa) Loss of profits affords basis
for damages for breach.-Sargent v. Frank
Cram & Sons, 916.

1059(1) (Wis.) Exceptions cannot bring up Loss of profits proper basis for breach of
whole case.-State v. Corscot, 179.
contract to provide sand for hauling.-Id.
Exceptions must incorporate relevant evi-46 (Wis.) No recovery for value of medical
services
dence or proceedings.-Id.
rendered gratuitously.-Nelson
1063 (4) (Mich.) Evidence not weighed Pauli, 217.
without motion for new trial.-People v. Sek-
elyn, 479.

V.

(B) Aggravation, Mitigation, and Reduc-
tion of Loss.

(D) Record and Proceedings Not in Rec-62(4) (Iowa) Plaintiff had right to sell

ord.

1114(2) (Minn.) On appeal Supreme Court
cannot consider matters not set forth in set-
tled case or bill of exceptions.-State v. Swan,
581.

(F) Dismissal, Hearing, and Rehearing.

1132 (Iowa) Court will not refuse hearing
because arguments not filed in time, where no
prejudice appears.-State v. McDougal, 929.

(G) Review.

1137(5) (Minn.) In prosecution for wife
abandonment, evidence of conversation between
attorney and defendant's wife held not preju-
dicial error.-State v. Ford, 812.

1139 (Iowa) No retrial on appeal by state.
-State v. Kelley, 834.

truck and recover damages after breach of con-
tract to furnish sand for hauling.-Sargent v.
Frank Cram & Sons, 916.

VI. MEASURE OF DAMAGES.
(A) Injuries to the Person.
96 (Iowa) Amount discretionary with ju-
ry.-Buffalo v. City of Des Moines, 844.

(B) Injuries to Property.

105 (Neb.) Rule of damages on conversion
of injured animals stated.-Hammang v. Chi-
cago & N. W. Ry. Co., 991.

VII. INADEQUATE AND EXCESSIVE

DAMAGES.

by

132(1) (Wis.) $8,000 held excessive
$2,000 for damages to truck and injuries to
shoulder.-Heintz v. Schenck, 610.

1144(5) (lowa) Presumption is in favor
of appellate court's jurisdiction.-State v. Mc-132(2) (Iowa) $3,000 not excessive for
Dougal, 929.
possibly permanent injury to shoulder and arm.
1159(5) (Iowa) Supreme Court will not-Spiker v. City of Ottumwa, 465.
disturb verdict of conviction where supported 132 (2) (N.D.) Verdict for $8,000 for prob-
by evidence.-State v. Bouma, 887.
ably permanent injuries held not excessive.-
1165(1) (Iowa) Denial of motion to sub- Asch v. Washburn Lignite Coal Co., 757.
mit case as of date on which appellant's argu-132(6) (Wis.) Verdict for $10,000 held
ment should have been filed held not prejudi- not excessive for injury to ankle.-Nelson v.
cial.-State v. McDougal, 929.
Pauli, 217.

11662 (12) (Minn.) Rebuke of defendant's
counsel for asking seemingly impertinent ques-
tion of state's witness held too severe and
prejudicial.-State v. Jensen, 581.

1169(12) (Minn.) In prosecution for wife
abandonment, evidence of conversation between
the attorney and defendant, held not prejudicial
error. State v. Ford, 812.

11702 (1) (Mich.) Reversible error not to
permit accused's counsel to inspect memoranda
of witness.-People v. Schepps, 508.

1171(3) (Iowa) Misstatement of prosecu-
tor in argument held not ground for reversal.
-State v. Christianson, 462.

1173(2) (Mich.) Instruction defining "prac-
tice of medicine" should recognize exceptions,
but failure held not prejudicial.-People v.
Sekelyn, 479.

(H)

1183 (Iowa) Authority of Supreme Court
to commute sentence.-State v. Olander, 53.
1183 (Iowa) Judgment for fine in excess 173(2) (Iowa) Evidence admissible of
of authority ordered reduced.-State v. Braf-
ford, 625.

1186(4) (Neb.) Reversal, for errors not
resulting in substantial miscarriage of justice,
improper.-Porter v. State, 1006.

wife's inability to take in sewing, though not
engaged in that work at the time.-Buffalo v.
City of Des Moines, 844.

(C) Proceedings for Assessinent.

1189 (Iowa) Cause reversed on state's ap-206 (1) (Neb.) In a personal injury action
peal not remanded where defendant was ac- it is proper to order a physical examination of

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

206 (4) (Neb.) In a personal injury action
application for an order for a physical exam-
ination of plaintiff must be timely.-O'Brien v.
Sullivan, 532.

| 211(1) (S.D.) Seller's administrator to
avoid deed and bill of sale without procuring
decree of rescission was required to prove sell-
er entirely without understanding at time of
execution.-Lynn v. Schirber, 570.

(D) Delivery.

211(4) (owa) Evidence insufficient to
show execution was induced by threats, coer-
cion or undue influence.-Sutherland State Bank
v. Furgason, 200.

Proof of mental incapacity and undue influ-
ence must be clear and convincing.-Id.

211(4) (Iowa) Evidence held not to show
undue influence.-Ross v. Lawrence, 455.

56 (2) (Neb.) Delivery depends on inten- (B) Production and Inspection of Writ-
tion.-Bruce v. Albaugh, 366.

(E) Validity.

68(3) (Iowa) Mental capacity may exist
though grantor has not capacity to do business
generally. Sutherland State Bank v. Furgason,
200.

72(1) (Iowa) Execution at suggestion or
request of grantee does not establish undue
influence. Sutherland State Bank v. Furga-

son, 200.

ings and of Other Matters.

89 (Wis.) Denied where all material cor-
respondence already produced.-Worthington
Pump & Machinery Corporation v. Northwest-
ern Iron Co., 156.

Protection or inspection sought must be ma-
terial, and affect merits of action.-Id.

Plaintiff's attempts at cancellation of con-
tract prior to defendant's cancellation held im-
material on petition for inspection of corre-
spondence.-Id.

72(1) (Neb.) Undue influence to avoid 92 (Wis.) Writings must be in possession
deed must control grantor's will.-Bruce v. Al- or control of adverse party.-Worthington
baugh, 366.
Pump & Machinery Corporation v. Northwest-
ern Iron Co., 156.

72(4) (Iowa) Granddaughter and husband
could appeal to grantor's sense of justice with- 97(1) (Wis.) Facts showing materiality
out being chargeable with undue influence. and necessity must be alleged.-Worthington
Sutherland State Bank v. Furgason, 200. Pump & Machinery Corporation v. Northwest-
72(4) (Neb.) Affection for children ern Iron Co., 156.
relatives will not make gift voidable.-Bruce v. 97(6) (Wis.) Properly denied where shown
Albaugh, 366.

IV. PLEADING AND EVIDENCE.

or

on adverse examination and defendant's testi-
mony that all correspondence had been pro-
duced.-Worthington Pump & Machinery Cor-
pre-poration v. Northwestern Iron Co., 158.

194(2) (Iowa) Evidence negativing
sumption of delivery of deed in grantee's pos-
session after grantor's death must be con-
vincing.-Mathers v. Sewell, 636.

Evidence held insufficient to overcome pre-
sumption of delivery arising from possession.
-Id.

In absence of proof of correspondence be-
tween defendant and its agent and materiality
thereof, inspection of such correspondence will
be denied.-Id.

DISMISSAL AND NONSUIT.

196(3) (Iowa) Burden on party suing for See Appeal and Error, 780–803.
cancellation to establish mental incapacity and
undue influence.-Sutherland State Bank V.
Furgason, 200.

203 (Iowa) Expenditure of money by gran-
tee considered on question of undue influence.
-Ross v. Lawrence, 455.

208(4) (Neb.) Recording of deed evidence
of delivery.-Bruce v. Albaugh, 366.

208(6) (Neb.) Recording of deed evidence

of acceptance.-Bruce v. Albaugh, 366.

211(1) (Iowa) Evidence insufficient to

II. INVOLUNTARY.

~60(6) (N.D.) Refusal to dismiss for fail-
ure to bring action to trial within 5 years
held not error.-Burke v. Minnekota Elevator
Co., 948.

DIVORCE.

IV. JURISDICTION, PROCEEDINGS, AND

RELIEF.

(F) Judgment or Decree.

show mental incapacity.-Sutherland State 161 (Minn.) Evidence of fraud must be
Bank v. Furgason, 200.

186 N.W.-66

convincing to justify vacation of default di-

vorce judgment after good-faith marriage.-
Walters v. Walters, 693.

Evidence closely scrutinized on application to
open'default divorce judgment for fraud where
plaintiff has remarried.-Id.

On application to open default divorce judg-
ment for fraud, issues may be tried on oral
evidence.-Id.

posits so as to oblige contractor to clean twice.
-Id.
Evidence held to show cleaning contract not
canceled by order of War Industries Board.
-Id.
Excavation in excess of estimates held not to
entitle contractor to cancel cleaning contract.
-Id.

Trial of issues as to fraud on application to 63 (lowa) Landowner held entitled to con-
set aside default divorce decree proper.-Id.

(H) Fees and Costs.

194 (Iowa) Appellee taxed for cost of un-
necessary part of additional abstract.-Smith
v. Smith, 632.

V. ALIMONY, ALLOWANCES, AND DISPOSı-

TION OF PROPERTY.

struct ditch from another ditch maintained for
many years to a pond, but not to dam original
ditch.-Allen v. Berkheimer, 683.

Party allowed only nominal damages for
wrongful damming of ditch.-Id.

no

II. ASSESSMENTS AND SPECIAL TAXES.
received
~~71 (Iowa) Claim property
benefits is not valid objection to assessment.-
240 (2) (Iowa) Husband's signing as sure- Philip Drainage Dist. v. Peterson, 18.
ty not considered as liability in fixing alimony.71 (Minn.) Repair of public drainage sys-
tem a public benefit within statute.-State v.
-Smith v. Smith, 632.

240 (3) (Minn.) Findings for plaintiff as to County Board of Polk County, 709.
permanent alimony, etc., held supported by evi-79 (Iowa) Objection to assessment avail-
able to landowner admitting regular organiza-
dence.-Wetter v. Wetter, 144.
tion of district and drain constructed stated.
-Philip Drainage Dist. v. Peterson, 18.

240 (5) (Iowa) Alimony held not excessive.
-Nelson v. Nelson, 904.

245 (2) (Iowa) Moderate decrease of de-
fendant's earnings a possible change in situa-
tion presumably contemplated when alimony
awarded.-Keyser v. Keyser, 438.

Assessment of lands of old district for ex-
tension sustained.-Id.

79 (Minn.) Assessment for enlargement
may be apportioned on land benefited.-Lee v.
Jackson County, 713.
252 (Iowa) Alimony to wife of 55 in one-82(3) (Iowa) Only objections specified be-
third the farm, with the improvements, held fore supervisors can be considered on appeal
from confirmation of
proper. Smith v. Smith, 632.
Drainage Dist. v. Peterson, 18.

to wife

252 (Wis.) Property allowance
held excessive.-Twohig v. Twohig, 592.
Wife may be allowed more than one-third of
property, even though her marital delict is
greater than that of her husband.-Id.

assessments.-Philip

82 (3) (Minn.) Reasons for opinion of wit-
ness as to benefit to lands to be considered by
jury. In re County Ditch No. 67, Murray
County, 711.
to-82(3) (Minn.) Order of county board di-
recting enlargement of ditch held not appeal-
able, and not to be attacked on appeal from as-
sessment.-Lee v. Jackson County, 713.

263 (Iowa) Provision of decree making
tal amount of alimony due, and providing for
issuance of execution, on default in monthly
payments, held too drastic.-Nelson v. Nelson,

904.

286 (Wis.) Refusal to appoint trustee for
wife will not be disturbed in absence of abuse
of discretion.-Twohig v. Twohig, 592.

VI. CUSTODY AND SUPPORT OF
CHILDREN.

82(3) (Minn.) Notice of appeal in drain-
age proceedings held sufficient.-Connor
Martin County, 715.

V.

Validity of order establishing ditch cannot be
questioned on appeal from assessments for
benefits.-Id.

DRAMSHOPS.

298 (3) (Wis.) Custody of minor daughters
given to wife although guilty of desertion. See Intoxicating Liquors.
Twohig v. Twohig, 592.

308 (Iowa) Allowance for child held not
excessive.-Nelson v. Nelson, 904.

VII. OPERATION AND EFFECT OF DI-
VORCE, AND RIGHTS OF DI-
VORCED PERSONS.

DUE PROCESS OF LAW.

See Constitutional Law, 290–312.

EASEMENTS.

I. CREATION, EXISTENCE, AND TER-
MINATION.

320 (Iowa) Marriage of insured with di-
vorcee from another state held valid.-Web-36(3) (Minn.) Acquisition by adverse user
of easement in alley on adjoining premises not
ster v. Modern Woodmen of America, 659.
sustained.-E. M. & H. F. Ware v. Home Se-
curities Co., 242.

Until there has been an unqualified accept-19(9) (Iowa) Negligence for jury.-Cole-
ance of work, contractor held not entitled to
man v. Iowa Ry. & Light Co., 642.
interest on money held in reserve.-Id.

Cleaning contractor held not entitled to can-
cel contract on ground that it was breached by
failure to furnish right of way for placing
spoil.-Id.

19(12) (Iowa) Contributory negligence for
jury. Coleman v. Iowa Ry. & Light Co., 642.
EMBEZZLEMENT.

Evidence held to show that failure of rail-30 (Neb.) Immaterial that name of corpo-
road to excavate crossings did not cause de-ration, owner of property embezzled, differed