give instruction in Nebraska

1956In that connection, In re Estate of Keup, 145 Neb. 729 , 18 N. W. 2d 63 , referring to the four essential elements of undue influence, held that: “While the four elements must be established by the evidence to make a case sufficient to submit the issue to a jury and to sustain a verdict based thereon, however, it is not necessary that the court give an instruction setting forth the four elements separately provided they are sufficiently contained in the instructions given.” See, also, In re Estate of Farr, supra. In In re Estate of Fehrenkamp, 154 Neb. 488 , 48 N. W. 2d 421 , we held that: “Un

1956In that connection, In re Estate of Keup, 145 Neb. 729 , 18 N. W. 2d 63 , referring to the four essential elements of undue influence, held that: “While the four elements must be established by the evidence to make a case sufficient to submit the issue to a jury and to sustain a verdict based thereon, however, it is not necessary that the court give an instruction setting forth the four elements separately provided they are sufficiently contained in the instructions given.” See, also, In re Estate of Farr, supra. In In re Estate of Fehrenkamp, 154 Neb. 488 , 48 N. W. 2d 421 , we held that: “Un

1956In that connection, In re Estate of Keup, 145 Neb. 729 , 18 N. W. 2d 63 , referring to the four essential elements of undue influence, held that: “While the four elements must be established by the evidence to make a case sufficient to submit the issue to a jury and to sustain a verdict based thereon, however, it is not necessary that the court give an instruction setting forth the four elements separately provided they are sufficiently contained in the instructions given.” See, also, In re Estate of Farr, supra. In In re Estate of Fehrenkamp, 154 Neb. 488 , 48 N. W. 2d 421 , we held that: “Un

1956In that connection, In re Estate of Keup, 145 Neb. 729 , 18 N. W. 2d 63 , referring to the four essential elements of undue influence, held that: “While the four elements must be established by the evidence to make a case sufficient to submit the issue to a jury and to sustain a verdict based thereon, however, it is not necessary that the court give an instruction setting forth the four elements separately provided they are sufficiently contained in the instructions given.” See, also, In re Estate of Farr, supra. In In re Estate of Fehrenkamp, 154 Neb. 488 , 48 N. W. 2d 421 , we held that: “Un

1951The court said, following Davis v. State, 51 Neb. 301 , 70 N. W. 984 : “When complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” In Collins v. State, 46 Neb. 37 , 64 N. W. 432 , an instruction on reasonable doubt was approved by this court, which contains the subject matter as appea

1951The court said, following Davis v. State, 51 Neb. 301 , 70 N. W. 984 : “When complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” In Collins v. State, 46 Neb. 37 , 64 N. W. 432 , an instruction on reasonable doubt was approved by this court, which contains the subject matter as appea

2019We have held that “counsel’s failure to raise novel legal theo- ries or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.” State v. Sanders, 289 Neb. 335, 343 , 855 N.W.2d 350 , 357 (2014).

2001Smith v. Paoli Popcorn Co., 260 Neb. 460 , 618 N.W.2d 452 (2000). *861 As we review instruction No. 12 in the context of the other instructions given, specifically in light of instruction No. 11, we conclude that it was prejudicial error for the trial court to give instruction No. 12.

2001Smith v. Paoli Popcorn Co., 260 Neb. 460 , 618 N.W.2d 452 (2000). *861 As we review instruction No. 12 in the context of the other instructions given, specifically in light of instruction No. 11, we conclude that it was prejudicial error for the trial court to give instruction No. 12.

1988In Gilbert v. Archbishop Bergan Mercy Hospital, supra at 154, 421 N.W.2d at 764 , we held that “it is not error for the trial court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party’s theory of the case.” See, also, First West Side Bank v. Hiddleston, 225 Neb. 563 , 407 N.W.2d 170 (1987).

1988In Gilbert v. Archbishop Bergan Mercy Hospital, supra at 154, 421 N.W.2d at 764 , we held that “it is not error for the trial court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party’s theory of the case.” See, also, First West Side Bank v. Hiddleston, 225 Neb. 563 , 407 N.W.2d 170 (1987).

1988In Gilbert v. Archbishop Bergan Mercy Hospital, supra 228 Neb. at 154 , 421 N.W.2d at 764 , we held that "it is not error for the trial court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party's theory of the case." See, also, First West Side Bank v. Hiddleston, 225 Neb. 563 , 407 N.W.2d 170 (1987).

1988In Gilbert v. Archbishop Bergan Mercy Hospital, supra at 154, 421 N.W.2d at 764 , we held that “it is not error for the trial court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party’s theory of the case.” See, also, First West Side Bank v. Hiddleston, 225 Neb. 563 , 407 N.W.2d 170 (1987).

1958The defendant requested the court to give this instruction: “Feebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may nevertheless be properly considered by you in determining whether a homicide has been committed with a deliberate and premeditated design to kill, and may thus be effective to reduce the grade of the offense.” This obviously rests upon our holding in Washington v. State, 165 Neb. 275 , 85 N. W. 2d 509 . *490 It will be noted, that the court gave the substance of this requested instruction as above set out.

1958The defendant requested the court to give this instruction: “Feebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may nevertheless be properly considered by you in determining whether a homicide has been committed with a deliberate and premeditated design to kill, and may thus be effective to reduce the grade of the offense.” This obviously rests upon our holding in Washington v. State, 165 Neb. 275 , 85 N. W. 2d 509 . *490 It will be noted, that the court gave the substance of this requested instruction as above set out.

1955Sweet v. State, 75 Neb. 263 , 106 N. W. 31 .

1955Sweet v. State, 75 Neb. 263 , 106 N. W. 31 .

1951The court said, following Davis v. State, 51 Neb. 301 , 70 N. W. 984 : “When complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” In Collins v. State, 46 Neb. 37 , 64 N. W. 432 , an instruction on reasonable doubt was approved by this court, which contains the subject matter as appea

1951The court said, following Davis v. State, 51 Neb. 301 , 70 N. W. 984 : “When complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” In Collins v. State, 46 Neb. 37 , 64 N. W. 432 , an instruction on reasonable doubt was approved by this court, which contains the subject matter as appea

1951Likewise, an instruction very similar to instruction No. 9 in the present case was approved in Whitney v. State, 53 Neb. 287 , 73 N. W. 696 .

1951Likewise, an instruction very similar to instruction No. 9 in the present case was approved in Whitney v. State, 53 Neb. 287 , 73 N. W. 696 .

1950As to this contention the following from Davis v. State, 51 Neb. 301 , 70 N. W. 984 , is applicable: “When *845 complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” Also the following from Brice v. State, 138 Neb. 853 , 295 N. W. 894 : “Defendant also complains of rulings of the tria

1950As to this contention the following from Davis v. State, 51 Neb. 301 , 70 N. W. 984 , is applicable: “When *845 complaint is made of the refusal of the district court to give an instruction asked, the burden is upon the party complaining to show, not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.” Also the following from Brice v. State, 138 Neb. 853 , 295 N. W. 894 : “Defendant also complains of rulings of the tria

1947This court said in Roth v. Blomquist, 117 Neb. 444 , 220 N. W. 572 , 58 A. L.

1947This court said in Roth v. Blomquist, 117 Neb. 444 , 220 N. W. 572 , 58 A. L.

1934“It is the duty of the court to instruct the jury upon the issues presented 'by the pleadings and evidence, whether requested so to do or not. * * * “The refusal of the court to give instructions requested by the defendant upon issues presented by the pleadings and evidence, and not covered by the instructions given by the court upon its own motion, may be ground for reversal of the judgment.” Blue Valley State Bank v. Milburn, 120 Neb. 421 .

1932And in Terry v. Beatrice Starch Co., 43 Neb. 866 , we held: “It is error for the court to give an instruction which assumes as established a disputed question of fact.

1932It is for the jury alone to pass upon conflicting evidence.” See, also, Herold v. Coates, 88 Neb. 487 ; Estelle v. Daily News Publishing Co., 99 Neb. 397 ; Willman v. Sandman, 101 Neb. 92 .

1932It is for the jury alone to pass upon conflicting evidence.” See, also, Herold v. Coates, 88 Neb. 487 ; Estelle v. Daily News Publishing Co., 99 Neb. 397 ; Willman v. Sandman, 101 Neb. 92 .

1932It is for the jury alone to pass upon conflicting evidence.” See, also, Herold v. Coates, 88 Neb. 487 ; Estelle v. Daily News Publishing Co., 99 Neb. 397 ; Willman v. Sandman, 101 Neb. 92 .

1930It is not sufficient that the circumstances when taken together create a probability, although a strong one, of the guilt of the accused, but if the facts can be accounted for or explained upon any other reasonable hypothesis than the guilt of the defendant, then your verdict should be not guilty.” In Wakeley v. State, 118 Neb. 346 , it was held error to refuse a cautionary instruction on the subject of circumstantial evidence where the evidence is wholly circumstantial in its nature.

1929The questions still remaining are: Was the defendant accorded his right of a fair trial ? v In this connection we 'find it necessary, in view of the record before us, to discuss but two contentions of the defendant, first, the overruling by the trial court of the defendant’s challenge to the jury panel “or array.” With reference to the refusal of the court to give instruction No. 2 requested by the defendant which relates to the necessity of scrutinizing the testimony of detectives, etc., it would seem that, in view of the fact that all witnesses to which this instruction would refer were, as

1922In Berry, Automobiles 3d ed.) sec. 1086, it is said, quoting Ritchie v. Waller, 63 Conn. 155 , 27 L.

1896(Scott v. Spencer, 42 Neb., 632 ; Glass v. Zutavern, 43 Neb., 334 .) This being true,, we cannot inspect the evidence in this case to ascertain whether the fact stated to the jury by the court in the instruction requested and given was thereby proved and undisputed or not, and cannot say but that it was entirely proper for the court to give the instruction.

1896(Scott v. Spencer, 42 Neb., 632 ; Glass v. Zutavern, 43 Neb., 334 .) This being true,, we cannot inspect the evidence in this case to ascertain whether the fact stated to the jury by the court in the instruction requested and given was thereby proved and undisputed or not, and cannot say but that it was entirely proper for the court to give the instruction.

1893Co., 75 Mo., 542 .) The refusal of the court to give the instruction referred to was correct.

1893(Gillett v. Thiebold, 9 Kan., 427 ; Dreyfus v. Aul, 29 Neb., 191 .) The refusal of the court to give the instruction asked, was error.

1893(Gillett v. Thiebold, 9 Kan., 427 ; Dreyfus v. Aul, 29 Neb., 191 .) The refusal of the court to give the instruction asked, was error.