Brown v. Commonwealth, 78 Pa. St. 122; State v. Emmett, 23 Wis. 632; and especially may it be amended in the matter of time: State v. Blaisdell, 49 N. H. 81; State v. Jenkins, Sup. Ct. N. H., July 15, 1887; Commonwealth v. Smith, 108 Mass. 486. But while it is conceded that the caption is no part of an indict:nent, there is some conflict of opinion as to where the caption ends and the indictment begins. In England, and in many of the states following the English practice, these words, "The jurors, etc., upon their oaths, present," are termed the commencement of the indictment, and are not considered to be a part of the caption: See People v. Bennett, 37 N. Y. 117; 93 A. Dec. 551; State v. Paine, 1 Ind. 163; State v. Hopkins, 7 Blackf. 494. On the other hand, it has been held that these words are part of the caption, and mere introductory matter, constituting no portion of the indictment: State v. Creight, 1 Brev. 169; 2 Am. Dec. 656; State v. Moore, 24 S. C. 150; 58 Am. Rep. 241. It is further held that if it appears on the face of the record in the trial court, and from the transcript of the record after the removal into the appellate court, that the indictment is sufficient in form and substance, and that it was properly preferred by a lawful grand jury to a court having jurisdiction of the subject, it will be deemed sufficient, although the commencement be wholly omitted: State v. Freeman, 21 Mo. 482; State v. Blakely, 83 Id. 359; and see State v. Daniels, 66 Id. 192.

Charging Part of Indictment. — In reference to the charging part of an indictment, the law is strict in requiring the closest observance to established forms and precedents, and in demanding a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy. The same strictness is not required in reference to the caption, the distinction in the two cases being that the charging part is really the matter which the accused is called upon to meet and answer, while the caption is a mere history or record of the case up to the finding of the indictment: State v. Moore, 24 S. C. 150; 58 Am. Rep. 241. It is well settled that in charging the crime of murder, it is necessary that the facts should be stated with convenient certainty: People v. Aro, 6 Cal. 207; 65 Am. Dec. 503; Willis v. People, 1 Scam. 401; White v. Commonwealth, 9 Bush, 178. And formerly, there was no part of criminal pleading so difficult as to safely and correctly describe in an indictment the means and manner by which a murder was committed: See State v. Owen, 1 Murph. 452; 4 Am. Dec. 571; State v. Fley, 2 Brev. 338; 4 Am. Dec. 583; Territory v. McFarlane, 1 Mart. 211; 5 Am. Dec. 706; White v. Commonwealth, 6 Binn. 179; 6 Am. Dec. 443; State v. Orrell, 1 Dev. 139; 17 Am. Dec. 563; State v. Crook, 2 Bail. 66; 23 Am. Dec. 117; Dukes v. State, 11 Ind. 557; 71 Am. Dec. 370. But it has been more recently held that the principles of the common law require in capital cases only such rules of pleading as pertain to all crimes: State v. Verrill, 54 Me. 408, 413; and while the indictment must state the charge with as much certainty as the circumstances of the case will permit, nothing more than this is required: Commonwealth v. Webster, 5 Cush. 295; 52 Am. Dec. 711; State v. Morrissey, 70 Me. 401; compare State v. Edmundson, 64 Mo. 398; State v. Ramsey, 82 Id. 133. And in an indictment for murder, a count charging an assault and killing "in some way and manner, and by some means, instruments, and weapons to the jurors unknown," is good and sufficient, where the mode of killing cannot be more particularly described: Commonwealth v. Webster, 5 Cush. 295; 52 Am. Dec. 711; Commonwealth v. Fenno, 125 Mass. 387; Commonwealth v. Martin, 125 Id. 394; State v. Wood, 53 N. H. 484; State v. Burke, 54 Id. 92; Colt v. People, 1 Park. Cr. 611; People v. Cronin, 34 Cal, 191; State v. Parker, 65 N. C. 453. And several different and incon

sistent modes of killing may le set out in the same indictment in different counts: Smith v. Commonwealth, 21 Gratt. 809. By the English statute 24 & 25 Vict., c. 100, in an indictment for felonious homicide, it is not necessary to set forth the manner in which or the means by which the death of the deceased was caused. And under the provisions of similar statutes which have been adopted in many of the states, indictments for murder, not setting forth the manner in which the killing was perpetrated, have been sustained: See State v. Verrill, 54 Me. 408; State v. Morrissey, 70 Id. 401; Sneed 7. People, 38 Mich. 248; Williams v. State, 35 Ohio St. 175; Cathcart v. Commonwealth, 37 Pa. St. 108; Campbell v. Commonwealth, 84 Id. 187; People v. King, 27 Cal. 507.. It is sufficient to charge that the accused did "feloniously, willfully, and of malice aforethought, kill and murder the deceased," naming him, and the time and appropriate place being stated: People v. Cronin, 34 Cal. 200; People v. Davis, 73 Id. 355; State v. Shay, 30 La. Ann. 114; Edwards v. State, 25 Ark. 444; Newcomb v. State, 37 Miss. 383; Sarah v. State, 28 Id. 267; People v. Enoch, 13 Wend. 159; People v. White, 22 Id. 167; People v. Conroy, 97 N. Y. 62; Kennedy v. People, 39 Id. 245. As to the certainty required in averments of time and place, see State v. Stanley, 33 Iowa, 526; State v. Lakey, 65 Mo. 217; State v. Steeley, 65 Id. 218; 27 Am. Rep. 271; State v. Harp, 31 Kan. 496. The name of the person murdered should be correctly given in the indictment: Dias v. State, 7 Blackf. 20. But it is enough to allege the name to be unknown, where the grand jury do not know what the name is: Commonwealth v. Stoddard, 9 Allen, 280; and see Guthrie v. State, 16 Neb. 667; State v. Wilson, 30 Conn. 500; Reed v. State, 16 Ark. 499; so it is enough to describe the deceased by his name alone, without an addition, where there are others of the same name: Commonwealth v. Varney, 10 Cush. 402; Boyd v. State, 17 Ga. 194; and if the name be that by which the person is generally known, though different from the true name, it is sufficient: Mager v. State, 42 Miss. 642; McBeth v. State, 50 Id. 81; and see State v. Lincoln, 17 Wis. 579; State v. Angel, 7 Ired. 27. So it is sufficient to allege the name of the deceased, without further alleging that he was a "reasonable creature in being": Bean v. State, 17 Tex. App. 60; Wade v. State, 23 Id. 308; State v. Stanley, 33 Iowa, 526. And in an indictment for infanticide, it is not indispensable that the sex of the murdered child be stated, even though its name be unknown or it has no name: State v. Morrissey, 70 Me. 401.

Requisities of Indictment for Murder under Statutes in Different States. As to the sufficiency of an indictment or information charging an offense in the language of the statute, see State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251, and extended note on the subject 252-258. In New York, it has been the steady ruling of the courts, through all changes of definition and of practice, to sustain the common-law form of an indictment for murder: See People v. Willett, 102 N. Y. 251, 254. And in an indictment under the Code of Criminal Procedure of that state for murder in the first degree, it is not necessary that the particular intent with which the homicide was committed should be set forth; it is sufficient to allege that it was done "feloniously, with malice aforethought, and contrary to the form of the statute": People v. Conroy, 97 Id. 62; an indictment in the common-law form is sufficient, notwithstanding the statute: People v. McDonnell, 92 Id. 657. So an indictment for murder in the first degree in the common-law form is held to be sufficient to support a conviction for deliberate or premeditated killing, under the Colorado statute. The expression, "feloniously, willfully, and of his malice aforethought,” fairly includes the statutory idea of deliberation and premeditation: Hill v. People,

1 Col. 436; Redus v. People, Sup. Ct. Col., June 15, 1887; and see State v. Pike, 49 N. H. 399; 6 Am. Rep. 533; State v. Johnson, Sup. Ct. Minn., Dec. 8, 1887. An indictment for murder under the Iowa statute must charge that the killing was done with "malice afore thought," but it is not essential that these identical words be used. It is sufficient if words of the same import are used: State v. Thurman, 66 Iowa, 693; and to the same effect, see State v. McGaffin, 36 Kan. 315. The Florida statute makes the premeditated intent to kill necessary to constitute murder in the first degree, and it must be charged in the indictment, in the language of the statute, as having been perpetrated "from a premeditated design," as this alone distinguishes that crime from murder in the lesser degrees: Denham v. State, 22 Fla. 664; Wiggins v. State, Sup. Ct. Fla., March 2, 1887, and to the same effect, see State v. Boyle, 28 Iowa, 522; State v. McCormick, 27 Id. 402; People v. O'Callaghan, Sup. Ct. Idaho, Jan. 25, 1886; State v. Brown, 21 Kan. 38. But in an indictment for murder in the first degree under the Nevada statute, charging the homicide to have been with "malice aforethought” is tantamount to an averment that the act was "willful, deliberate, and premeditated": State v. Hing, 16 Nev. 307; State v. Crozier, 12 Id. 300, and see People v. Ah Choy, 1 Idaho, 317. But in the more recent case of People v. O'Callaghan, Sup. Ct. Idaho, Jan, 22, 1886, it is held that since the statute has narrowed and qualified the general definition of murder by a distinct and substantive definition of murder in the first degree, an indictment for murder as at common law would not necessarily include the charge of murder in the first degree, and the offense must therefore be pleaded substantially in the language of the statute.

In Texas, an indictment is sufficient to charge a murder of the first degree, if it charges that the accused "did, with malice aforethought, kill the deceased [naming him], by shooting him with a pistol." To allege that the killing was with "malice aforethought" is equivalent to alleging that the homicide was committed with express "malice aforethought": Banks v. State, 24 Tex. App. 599. But an indictment, to charge the offense of murder, must charge not merely that the accused murdered, but that he "killed," the deceased: Strickland v. State, 19 Id. 518; Pierce v. State, 21 Id. 669. Under the Missouri statute, murder in the second degree is murder at common law, and an indictment which charges the homicidal act to have been done "feloniously, willfully, and with malice aforethought," sufficiently charges the crime of murder in the second degree: State v. Lowe, 93 Mo. 547. The words "with malice aforethought" are held to be the legal equivalents of "with malice and premeditation ": Id.; State v. Curtis, 70 Mo. 594; and see State v. Robinson, 73 Id. 306; State v. Wieners, 66 Id. 13. In California, the sufficiency of an indictment for murder is not to be tested by the rules of the common law, but by the requirements of the statute. If the indictment is certain as to the person and the offense charged, and states all the acts necessary to constitute a complete offense, it contains all that the statute requires: People v. Murphy, 39 Cal. 52; People v. Cronin, 34 Id. 200. If the indictment charges that the defendant inflicted the mortal blow, of which the deceased died, "feloniously, willfully, and of his malice aforethought," it is sufficient: People v. Martin, 47 Id. 102; and see People v. Davis, 73 Id. 355. In New Jersey, an indictment for murder in the first degree, following the statutory language in the essential particulars of charging "that the defendant did willfully, feloniously, and of his malice aforethought, kill and murder the deceased," is sufficient. It is unnecessary to set out in the count that the alleged killing was "willful, deliberate, and premeditated," which is one of the categories of murder mentioned in the statute: Graves v. State, 45 N. J. L.

203; Titus v. State, 49 Id. 36. An information alleging that the defendant "feloniously, willfully, deliberately, and with malice aforethought," assaulted, struck, stabbed, and cut H. with a knife, inflicting a mortal wound, from which H. died, and concluding by charging that the defendant, in the manner and form aforesaid, did "feloniously, willfully, deliberately, premeditatedly, and of malice aforethought," kill and murder H., was held to be unquestionably sufficient to charge an intentional murder: State v. Smith, 38 Kan. 194; and see State v. Harp, 31 Id. 496. In Minnesota, an indictment for murder in the first degree, instead of alleging the killing to have been done with "malice aforethought," the words used in the form given in the statute, may allege the killing to have been done "with the premeditated design to effect the death," which are the words used in the statute in defining murder in the first degree. The criminal character of the act is as strongly stated in the latter words as in the former: State v. Holong, Sup. Ct. Minn., April 30, 1888; and see State v. Ryan, 13 Minn. 370.

Conclusion of Indictment. It is a constitutional requirement in many of the states that all indictments shall conclude "against the peace and dignity the state"; and it has been repeatedly held that an indictment which does not conclude with these constitutional words, or words of like import, is fatally defective: See State v. Lopez, 19 Mo. 255; State v. Pemberton, 30 Id. 376; State v. Kean, 10 N. H. 347; 34 Am. Dec. 162; Zarresseler v. People, 17 Ill. 101; Commonwealth v. Carney, 4 Gratt. 546; Thompson's Case, 20 Id. 724; State v. Anthony, 1 McCord, 285; State v. Cadle, 19 Ark. 613. Being a posi tive requirement of the constitution, the indictment must so conclude, the courts having no authority to dispense with what the constitution requires: State v. Durst, 7 Tex. 74; Holden v. State, 1 Tex. App. 225; Rice v. State, 4 Heisk. 215; Williams v. State, 27 Wis. 402; Nicholas v. State, 35 Id. 308. Thus an indictment concluding, "against the peace and dignity of the statute," was held to be invalid, the constitution requiring the conclusion, "against the peace and dignity of the state": Cox v. State, 8 Tex. App. 254; 34 Am. Rep. 746. So an indictment concluding, "against the peace and dignity of the state of W. Virginia," was held to be an insufficient compliance with a constitutional requirement that indictments shall conclude, "against the peace and dignity of the state of West Virginia": Lemons v. State, 4 W. Va. 755; 6 Am. Rep. 293. But in some of the states a literal compliance with the constitutional formula is not required, and it is held that redundant words not affecting the sense may be rejected as surplusage: See State v. Kean, 10 N. H. 347; 34 Am. Dec. 162. Thus in Missouri, the addition of the words "of Missouri" to the constitutional formula was held to furnish no valid ground of objection to the indictment: State v. Hays, 78 Mo. 600; and to the same effect, see State v. Schloss, 93 Id. 361; State v. Robinson, Sup. Ct. S. C., Jan. 5, 1888; State v. Hill, 19 S. C. 435; State v. Waters, 1 Mo. App. 7.

In every indictment founded on a statute, it is necessary to conclude "against the statute," unless the rule has been changed by legislation. The technical words, “against the form of the statute in such case made and provided," are usually employed, but equivalent expressions are just as sufficient in point of law, and have frequently been sustained: See Commonwealth v. Caldwell, 14 Mass. 330; United States v. Andrews, 2 Paine, 451; State v. Bartlett, 55 Me. 200; People v. Conroy, 97 N. Y. 62. It is only required that a phrase should be used which shows that the offense charged is founded on some statute: United States v. Smith, 2 Mason, 143, 150; and see State v. Tribatt, 10 Ired. 151. If an indictment charges an offense indictable at

common law, not being punishable by any statute, the concluding words, "contrary to the form of the statute," may be rejected as surplusage: Commonwealth v. Reynolds, 14 Gray, 87; 74 Am. Dec. 665. Under the Missouri statute (1 Rev. Stats. 1879, sec. 1821), an indictment will not be held bad because it fails to state the offense to have been contrary to the statute, and this, too, though the offense may have been created or the punishment declared by statute: State v. Schloss, 93 Mo. 361, 364. So in Kentucky, although an indictment describes an offense punished by statute, it is no longer necessary that it should conclude, "against the form of the statute": Commonwealth v. Kennedy, 15 B. Mon. 531. And the omission of the words, "contrary to the form of the statute," etc., does not vitiate the indictment under Arkansas laws, though the offense be created by statute: State v. Cadle, 19 Ark. 613; and see Brown v. State, 13 Id. 96.

CORTELYOU v. Maben.

[22 NEBRASKA, 697.]

IT IS VALID ACCEPTANCE OF DRAFT where the drawee wrote across the face thereof the words, "Excepted Sept. 18. L. B. Maben." And parol evidence, not being inconsistent with the writing itself, is admissible to show that the purpose of the drawee in writing the word "excepted" was to "accept" the draft.

LAW IS SYSTEM OF RULES AND PRINCIPLES, in which the rights of parties are protected and enforced, and it is the duty of a court to disregard mere pretexts, and decide a case, if possible, upon the merits.

ERROR to the district court of Holt County. The opinion states the case.

Utley and Small, for the plaintiff in error.

By Court, MAXWELL, C. J. This action was brought in the district court of Holt County by the plaintiffs against the defendants, and on the trial the court held that the petition did not state a cause of action, and therefore refused to admit evidence under it. The jury thereupon returned a verdict for the defendants, and judgment was rendered thereon.

The following is a copy of the petition:

"Plaintiff's complain of the defendants that whereas, on or about the seventeenth day of September, 1884, John M. Diels and Son drew their certain bill of exchange of that date, and then and there delivered the same to the Scribner State Bank, in the state of Nebraska, and then and thereby requested Maben and McCormick, at three days from sight thereof, to pay to the order of Scribner State Bank the sum of $498.70.

"The following is a copy of said bill, with all the indorsements thereon: