March, 1884, he was guilty of extreme cruelty to her, in this: he cursed and swore at her; called her vulgar names, in this: You damned old fool, you damned she-devil, you damned bitch, you are too damned nice to live,' and other like language; that he was so vulgar, vicious, and insulting that she became frightened, and was afraid he would do her bodily harm; that anxiety of mind and mental anguish caused by the cruel treatment induced a nervous attack which prostrated her, and that she has ever since been under the care of a physician; that many times in the last five years, on occasions of his unkindness and ill treatment, she had been driven from home, and been compelled to seek protection with friends, but she has been induced to return and live with him by his repeated and solemn promise that he would treat her kindly in the future; that in consequence of his violating his promises, and continuing to treat her with unkindness and cruelty and ill treatment, her health has been greatly impaired; that on the twenty-second of March, 1884, he ill treated her, as aforesaid; that she was obliged to leave home, and seek a home with her parents for herself and child; that at that time she was and has been suffering with sickness caused by his ill treatment, which caused her to be very sick; that she has been under, and is now under, the care of a physician; that he is a man of coarse and vulgar habits, of high temper and revengeful disposition; that he has frequently, in the last five years and more, especially in the last two years, cursed and sworn at her; that at such times he would vent his spite upon the little boy, by kicking, striking, and severely whipping him; he would teach the little boy to swear at her, and sit by and laugh at her while the boy would do it, and, if she would try to stop the boy, he would curse and swear at her, and abuse her in other ways, so she was in constant fear of her life, and would threaten to whip the boy harder if she said anything; that on the twenty-second of March, 1884, she took said boy to her father's, a suitable place, where he can be taught proper manners, and have a good moral education; that he would come and intrude upon her at her father's house, and demand that she return and live with him, and bring the boy with her, and threatened her life if she did not, and that he would commit some terrible crime,-shoot her parents or steal the child, and remove him out of the jurisdiction of the court; that on the third of November, 1884, he did come, and steal and forcibly carry the boy off, and sent the following telegram:

"FRIEND, NEB., November 3, 1884. "Mrs. T. Powers, Crete, Nebraska: You might as well give up. I have my boy,'" etc.

While the petition was probably assailable by a motion for a more specific statement, yet we think it sufficient when attacked after decree. It is alleged "that on many occasions he ** * struck her; he would use abusive, vulgar, and opprobrious epithets of and to her; that he accused her of being unchaste and untrue to him, threatened her life, and put her in fear of doing her bodily harm," etc.

A petition may state a cause of action, and yet be very informal. In Maxwell's Pleading and Practice, (Ed. 1885,) 113, it is said: "Mere defects of form-indefiniteness in the allegations of the petition-are not grounds of demurrer. These defects, and others if they exist, must be corrected by motion," etc.

The principal contention of defendant is that the decree is not supported by sufficient evidence; that, considering all the proofs, the finding should have been in his favor. We have carefully read all the evidence in the case; and, while we must concede that, if this hearing was in an original and not appellate capacity, we might incline strongly to a different conclusion from that reached by the trial court, yet we cannot hold that that decision was wrong. And it is quite possible that, had we had the opportunity of the judge who

tried the case, of an observation of the deportment of the witnesses, and of the other aids which are supposed to shed light upon a cause on trial directly before the court, we might have arrived at the same conclusion reached by him. In the capacity in which this court now sits, we must apply the fundamental and well-established rules applicable to such a capacity, that the decision is presumed to be correct, and that wherein the testimony is conflicting the decision thereon will be sustained unless clearly wrong. Callahan v. Callahan, 7 Neb. 41.

The testimony is quite voluminous, and is very contradictory. In fact, we do not remember of having perused a record in which appears a more sharp and unreasonable conflict of the statements of the witnesses. This occurs, not only in the testimony of the interested parties, but in that of those who are supposed to be wholly disinterested and destitute of bias. It is a lamentable fact that the disposition to help the side calling the witness is (unconsciously, perhaps) shown by many. It is charged, and no doubt believed, by some, that, had it not been for the meddlesome interference of persons other than the parties to this unfortunate controversy, there would have been no trouble nor domestic discord, and the family which is now separated would have remained together. However much such interference is to be condemned by all right-thinking people, yet this is a matter not submitted for decision by this nor the trial court. As the case is found and submitted, so it must be measured and weighed,-upon its own merits and facts as they exist, without reference to the cause.

As we have said, the testimony of the witnesses is irreconcilable, and, for the purpose of this review, it only becomes necessary to examine the evidence produced by plaintiff, and ascertain whether that, if believed by the trial court, is sufficient to sustain the decree. We quote from the testimony of plaintiff:

"We lived there [at Sutton] five years. He was drunk nearly all the time. He would come home very often, and vomit on the floor. ** * * He kept liquor in the house in a closet off of the sitting-room. For the last three years he nearly all the time had a bottle of whisky under his pillow or under the bed. Sometimes I would empty it out, and he would not know the difference, thinking he had drank it up. I told him it was mortifying to me to meet him always coming out of a saloon. He told me if I would let him have his liquor at home, like other people, he would not go off to the saloon. I told him then he could bring it if he would only take it three times a day, and not to excess. He would bring it home by the quart, and the little boy would play keeping saloon for his papa; and I told him we could not bring him up that way. I told him he could not bring it to the house any more, and he cursed and swore, and sometimes he would bring it and hide it. There was a half bushel of bottles that I had gathered up and put in the cellar when I came away that I had not destroyed. They were flat pint bottles and half-pint bottles. Mr. Powers had used the whisky. Just before I left, he was drunk every hour of the day. For the last three months he seemed to be almost constantly drunk, with the exception of one time, about the first of January, when he gave his last promise. He came home about nine o'clock, while I was undressing the baby to put him to bed, and he came in in a few minutes and commenced cursing me. I asked him why he did that; that I had said nothing to him. He cursed, and said it was a pretty time for a person to find fault about his coming home late. I told him it was all right. He cursed so that the little boy cried. I told him that it was too bad, and that he ought not to curse before the child. If he wanted to curse me, please to wait until I put Sammy to bed. He did. I went out into the room, and he cursed me and called me names: You damned old hussy you, you think I am asleep. You have been threatening to leave. Now you have got to go.' He said if I would go he would give me $10,000, and said that all I had to

do was to get ready and go. I told him I would if he would give me the things to go with. I had no trunk. He said all I had to do was to go down town and buy one. He said I was nothing but a damned old whore anyway; that the sooner I went home the better it would please him. He had called me that before. * * * Our child is six years old. He was sick during this winter, in the month of January. My husband was drinking during the child's sickness. I wanted the doctor to come. He came, but my husband kept me out in the other room, and talked to him. I wanted him to come in, but he still had this spree on him. After that, my sister-in-law went away, and baby was sick, and I wanted him to get the doctor for him, and he wouldn't. * * * Mr. Powers' conduct was very bad. One night I thought Sammy would die. Mr. Powers was drunk all the time. He came to the door, and jerked it open, and I told him I thought Sammy was dying; I wished he would please get in some water. He said he wished the

young one would die or sink into hell. He finally brought the water, and set it on the piano. * * * When he was drunk, he would tantalize the boy, and teach him to swear. One night he came in drunk, while I was undressing Sammy, and he did not want his clothes off. I was playing with him. Mr. Powers came in, and said: If you can't make that young one mind, I will.' He grabbed hold of him and struck him with his cane, and we jumped and screamed, and took Sammy away from him. He said he did not think he was hitting him so hard as that. ** * He would swear at me, and tell me I was a fool. He always told me I was a lazy hussy, and he has called me a bitch ever so many times. My health was poor when I went home. It was from his drinking. I used to be afraid of him. He would walk the floor, and flourish his cane, and act as though he would strike me. I used to be afraid he would kill me. I used to sit up all night, thinking he would kill me before morning.'

** * *

In so far as the profanity of defendant is concerned, I think it unnecessary to refer to the testimony of any other witness, as the proof is abundant on this point. This, of itself, furnishes no ground for a divorce; yet, when taken in connection with other facts, it may very properly be considered as giving color to the conduct of plaintiff, when accompanied with the indulgence of this detestable and pernicious habit. The constant use, by a husband, of profane language to a wife, will not, ordinarily, furnish very strong evidence of the high degree of affection and sweetness of disposition which is supposed to add to the pleasures of home.

The testimony of plaintiff as to the treatment received from her husband is fully corroborated by the witness Emma Welch, and in some degree by the testimony of Mrs. Birney and Charles Birney. The testimony of Emma Welch is sharply criticised by counsel for defendant, and, apparently, not without cause, for she seems to have been prompted by a desire to render what aid she could to plaintiff's cause. Yet it is possible she might have been, in the main, correct.

This testimony given on the part of plaintiff was all pointedly and flatly contradicted and denied by defendant and his witnesses, and, had the trial court adopted the line of testimony presented by him as true, the finding could and would have been sustained on appeal. By the testimony produced by defendant, if uncontradicted, it is made to appear that, aside from his habit of profanity, he has been a kind and affectionate husband. But upon this the trial court has acted, and we cannot say that the decision is manifestly or clearly wrong. It is shown, I think, to the satisfaction of any candid mind, that defendant was in the habit of using intoxicating liquors to a great degree of excess. The trial court found the charge of habitual drunkenness not proven. With that part of the case we shall have nothing to do; but we may remark that there is abundance of proof that defendant did drink,

!

at times, to excess, and that, when under the influence of liquor, he was boisterous, quarrelsome, offensive, and, at least, disgustingly unpleasant. This alone would not fill the legal requirement as to habitual drunkenness; but if these practices were indulged in at home, in the presence of the family, taken in connection with the habit of profanity, they would very clearly give character to the acts testified to by plaintiff and her witnesses. Occasional drunkenness cannot be a ground for a divorce; but such drunkenness, of the character detailed by the witnesses, if believed, would not only add a poignant sting to cruelty, in the way of danger, but would add also to the anguish of the recipient of the treatment by a fear of aggravated violence. Suppose the testimony of plaintiff is true, as was, no doubt, found by the court, that he would walk the floor and flourish his cane, and act as though he would strike her, and that she would sit up all night thinking he would kill her before morning, and, as stated by an apparently disinterested witness, his conduct seemed to be affected by the use of liquor, and he under the influence of the same, "from ten to fifteen drinks a day,” what would naturally be the effect upon the wife? Clearly, I should say this would be "extreme cruelty, whether practiced by personal violence or by other means," as prescribed by section 7 of chapter 25 of the Compiled Statutes, as ground for a divorce.

The question of the custody of the child is one which must be decided by the application of substantially the same rules as are applied to the foregoing. If the testimony of plaintiff and her witnesses is true, the decree for the custody of the child was proper.

Plaintiff contends that the amount of alimony allowed her was insufficient. Taking the whole testimony together as to the financial condition of defendant, we cannot say it was too low. The time for the payment of the alimony having, in part, elapsed, the decree will be so modified as to require the payment of the $2,500 as follows: $800 within 30 days; $800 within four months, and the remainder within nine months from date, the whole to draw interest at the rate of 7 per cent. from the date of the rendition of the decree in the district court. In all other respects the decree of the district court is affirmed. Decree accordingly.

(The other judges concur.)

PARKS v. STATE.

(Supreme Court of Nebraska. January 6, 1887.)

CRIMINAL LAW-TESTIMONY OF WITNESS NOT INDORSED ON INFORMATION.

The holding of the supreme court in the case of Stevens v. State, 19 Neb. 647, S. C. 28 N.W. Rep. 304, to the effect that, upon the trial of a criminal case which is being prosecuted on an information, it is error on the part of the court to permit, over due objection of the accused, a witness to be sworn on the part of the state, whose name had not been indorsed on the information before the trial, adhered to. (Syllabus by the Court.)

Error to district court, Dodge county.

Information for subornation of perjury.

C. Hollenback and Robert J. Stinson, for plaintiff in error.

Section 2 of the act providing for prosecuting offenses by information, (Sess. Laws Neb. 1885, p. 397,) provides that "the district attorney shall indorse the names of such witnesses as are known to him on the back of the information at the time of filing the same; and, at such other time before trial as the court shall prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him." The statute is mandatory. Stevens v. State, 28 N. W. Rep. 304. The statute is undoubtedly copied from Michigan. People v. Quick, 25 N. W. Rep. 302; People v. Hall, 48 Mich. 487; S. C. 12 N. W. Rep. 665. See, also, U. S. v. Southmayd, 6 Biss. 321;

Reg. v. Lord Gordon, 2 Doug. 591; Reg. v. Frost, 9 Car. & P. 151; Jillard v. Com., 26 Pa. 169; Com. v. Knapp, 9 Pick. 495.

Criminal statutes should be strictly construed, and nothing should be taken by intendment or implication. Gardner v. People, 3 Scam. 89; Gates v. People, 14 Ill. 435.

William Leese, Atty. Gen., William Marshall, Dist. Atty., and J. E. Frick, for the State.

COBB, J. The plaintiff in error was tried and convicted by the district court of Dodge county, upon an information for subornation of perjury. He brings the cause to this court on error. There are 15 errors assigned, but as it was decided at the consultation that there must be a new trial upon the one arising first in the order of sequence, no good purpose would be subserved by setting them out at length here. I copy the fifth and sixth assignments of error: "(5) The court erred in allowing or permitting one John McCaught, a witness for the state, to testify, his name not appearing on the back of the information, as required by law. (6) Accident and surprise which ordinary prudence could not have guarded against. Such surprise consisted in the introduction of witnesses by the state, whose names were not indorsed on the information as required by law."

The chapter of our statute, (chapter 54, Criminal Code,) by its first section, confers upon the district court the power to hear, try, and determine prosecutions upon information, for crimes, misdemeanors, and offenses, the same as they may in like case upon prosecutions upon indictments. Section 2 of the act (579 of the Criminal Code) provides as follows: "All informations shall be filed during the 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 the same; and at such time, before the trial of any case, as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him."

It appears, from an inspection of a certified copy of the information and the bill of exceptions, that several witnesses, especially John McCaught, the principal witness, were sworn and examined on the part of the state, whose names were not, at the time, indorsed or written on the back of the information. The defendant objected to the swearing of the witness McCaught, and saved his exception.

In the case of Stevens v. State, 19 Neb. 648, S. C. 28 N. W. Rep. 304, this point was squarely presented; and, upon due consideration, it was held as contended for by the plaintiff in error. Counsel now present an able brief and argument, and earnestly urge the court to reverse its decision on this point.

As to the language of the statute, it cannot be doubted that the meaning given it by the court in the above case is the plain and natural one. Counsel refer to the case of Ballard v. State, 19 Neb. 609, S. C. 28 N. W. Rep. 271, where it is held that, "in the trial of a criminal prosecution, wherein a defendant is arraigned upon an indictment found by a grand jury, the state is not precluded from the examination of witnesses whose names are not indorsed upon the indictment;" and, referring to the case of Stevens v. State, ask, "what good reason can be assigned for so limiting his rights in this regard under the former mode, and so extending them under the latter mode of prosecution?" etc. Now, it seems to me that this inquiry would be far more cogent if addressed to the proper committee of the legislature than when addressed to a court. Courts have but little to do with the policy of the laws, whatever might be the opinion of its members, as individuals, of their wisdom or expediency. The laws which they find on the statute books it is the