State v. Huckins. that the controversy was pending for nine months in the court below; that the testimony was formally taken and considered, and though conflicting as to the domestic merits and family contentions of the parties, was without doubt carefully weighed by the court and the judgment established on sufficient grounds. It was held, in 1878, by this court, in Callahan v. Callahan, 7 Neb., 38, that on appeal, where no question of law is involved, the testimony conflicting and pretty evenly balanced, the judgment of the court will not be disturbed. Both the premises and conclusions of this precedent apply in this instance. The judgment of the district court upon this part of the case is affirmed. THE other judges concur. JUDGMENT ACCORDINGLY. 23 309 49 442 51 574 STATE OF NEBRASKA, PLAINTIFF IN ERROR, V. LEW | 23 309 HUCKINS, DEFENDANT IN ERROR. Criminal Law: EVIDENCE: GOOD CHARACTER. Where on the trial of a person accused of crime he introduces witnesses to prove his good character, the state may introduce witnesses in rebuttal, although their names are not endorsed on the information. In such case the question of character is collateral to the main issue, and being raised by the defendant the state may call witnesses in rebuttal. EXCEPTIONS filed by county attorney of Douglas county. Tried below before GROFF, J. E. W. Simeral, for the state, cited: 1 Bishop's Crim. Proc., 1112-1119. State v. Rivers, 27 N. W. Rep., 781. State v. Parish, 22 Towa, 284. 57 474 23 309 58 778 State v. Huckins. William F. Gurley, contra, cited: Stevens v. State, 19 Neb., 648. Parks v. State, 20 Neb., 515. BY THE COURT. In a criminal prosecution the defendant called a number of witnesses to prove his good character. The county attorney thereupon offered to produce witnesses whose names were not on the information to rebut the testimony of the defendant's witnesses on the question of his character. This motion was overruled, and to determine the law relating to the matter the county attorney obtained leave and has filed a petition in error in this court. The question turns upon the construction to be placed upon section 579 of the criminal code, which is as follows: "All informations shall be filed during term, in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing of the same; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall endorse thereon the names of such other witnesses as shall then be known to him." In Stevens v. State, 19 Neb., 648, and Parks v. State, 20 Neb., 515, it was held that witnesses called on the part of the state, whose names were not endorsed on the information, would not be permitted to testify; and we adhere to those decisions. The reason for this rule is very clearly stated by Judge COBB, in Parks v. State, where, in speaking of the law providing for prosecutions by information, he says: "It is an innovation which had often been suggested before it was adopted. With its undoubted advantages, it has been objected to as placing too much power in the hands of the prosecutor. Probably foreseeing this objection, the framers of the law sought to throw State v. Huckins. around the rights of the accused, under this method of prosecution, every reasonable protection. Under the system of prosecution by indictment, the grand jury was, in a sense, the accuser of every person brought to trial for a crime. So here, where the services of a grand jury are dispensed with, while the responsibility of the prosecution rests in some sense upon the shoulders of the prosecuting attorney, there is certainly some reason why there should be open to the accused some source of information as to the identity of the persons upon whose oath his conviction and punishment is about to be claimed at the bar of justice." The state cannot, in the first instance, attack the character of a party charged with crime, the presumption being that such party is of good character. Where, however, the accused puts his character in issue by calling witnesses to prove that his general reputation is good, the state may call witnesses to disprove that fact, without the names of such witnesses being endorsed on the information. The reason is, the question of character is collateral to the main issue, and is raised by the accused. Briefly stated, the rule is, that when the presumption of the good character of a party accused of crime has been overcome by prima facie evidence of guilt, he may in roduce witnesses to show his good character. Dupree v. State, 33 Ala., 380. State v. Wells, Coxe, 424. State v. Rivers, 27 N. W. R., 781. When a person accused of a crime has introduced evidence tending to show his good character, the state may introduce witnesses in rebuttal, although their names are not endorsed on the information. McDaniel v. State, 8 Sm. and M., 401. Carter v. Commonwealth, 2 Va. Cas., 169. Reg. v. Rowton, Leigh & C., 520; S. C., 10 Cox C. C., 25. Young v. Commonwealth, 6 Bush, 312. The court therefore erred in excluding the witnesses. JUDGMENT ACCORDINGLY. Phoenix Ins. Co. v. City of Omaha. THE PHOENIX INSURANCE COMPANY OF BROOKLYN, NEW YORK, PLAINTIFF IN ERROR, V. THE CITY OF OMAHA, DEFENDANT IN ERror. 1. Taxes: INSURANCE PREMIUMS. The gross premiums received by every insurance company, other than mutual companies without capital stock within this state, during the year previous to the year of listing in the county where the agent conducts the business, Held, To be assessable and taxable as personal property in the hands of such agent. 2. : -: CITIES OF FIRST CLASS. The words, “personal property taxable according to the laws of this state," as the same occur in section twenty-five of chapter thirteen of the Compiled Statutes of 1885, entitled "Cities of the first class," Held, To be used in the sense of "taxables" or "subjects of taxation," and to embrace all subjects of taxation under the laws of the state other than real estate, which is therein specially named. ERROR to the district court for Douglas county. Tried below before WAKELEY, J. W. S. Shoemaker, for plaintiff in error, cited: Lott v. Ross, 38 Ala., 156. Mayor v. Hartridge, 8 Ga., 23. Warring v. Savannah, 60 Ga., 99. Dubuque v. Northwestern Ins. Co., 29 Iowa, 9. People v. Thurber, 13 Ill., 554. North America Ins. Co. v. Com., 87 Penn. State 173. Glasgow v. Rowse, 43 Mo., 479. Ins. Co. v. Com., 133 Mass., 162. John L. Webster, for defendant in error, cited: State v. R. R. Co., 45 Md., 361. Cons., Sec. 1, Art. IX. Paul v. Virginia, 8 Wall., 168. Telegraph Co. v. Lieb, 76 Ill., 172. Leavenworth v. Booth, 15 Kan., 627. People v. Davenport, 91 N. Y., 574. People v. Commissioners, 76 N. Y., 73. Worth v. R. R. Co., 89 N. C., 291. COBB, J. Phoenix Ins. Co. v. City of Omaha. This action was brought in the district court of Douglas county by the Phenix Insurance Company of Brooklyn, New York, against the city of Omaha, for the recovery of certain taxes paid by the plaintiff to the defendant under protest. The cause was submitted to the district court upon an agreed statement of facts, and tried to the court, without the intervention of a jury. The court found on the issues joined for the defendant, and rendered judgment in its favor. There was no motion for a new trial, and the cause is brought to this court by petition in error; the following errors being assigned: 1. The court erred in finding for the defendant. 2. The finding is not sustained by the agreed statement of facts. 3. The court erred in giving judgment for the defendant. 4. The finding and judgment are contrary to the law. Counsel for defendant in error makes two points against the proceedings of the plaintiff in error, not reaching the merits of the controversy: 1. That the case having been brought to this court upon a printed abstract, without filing any transcript or bill of exceptions, and in attempted conformity to a rule of this court, but in violation of such rule, in that there was not filed therewith "a transcript of the final judgment, decree, or order sought to be reversed," or "the name of the judge who tried the cause in the court below." Upon an examination of the record I find it not to be open to this objection. The petition in error is accompanied by a certified copy of a journal entry in the district court, embracing the judgment sought to be reversed and containing also |