defendant contends rule in Nebraska

1973He urges that a test conforming to the rule announced in Durham v. United States, 214 F. 2d 862 , 45 A. L.

1973He urges that a test conforming to the rule announced in Durham v. United States, 94 U.S.App.D.C. 228 , 214 F.2d 862 , 45 A.L.R.2d 1430 , or as set forth in section 4.01 of the Model Penal Code proposed by the American Law Institute, be declared to be the law of this state.

1961R. 1200, holding that in order for a plaintiff to recover in such a case “it must be made to appear, by a clear preponderance of the evidence, that there has been no such divided or intervening control of the bottle as to afford any reasonable opportunity for it or its contents to have been tampered with by another after it left the possession or control of the defendant or its agents.” See, also, Jordan v. Coca Cola Bottling Co. of Utah, 117 Utah 578 , 218 P. 2d 660 , 52 A. L.

1961R. 1200, holding that in order for a plaintiff to recover in such a case “it must be made to appear, by a clear preponderance of the evidence, that there has been no such divided or intervening control of the bottle as to afford any reasonable opportunity for it or its contents to have been tampered with by another after it left the possession or control of the defendant or its agents.” See, also, Jordan v. Coca Cola Bottling Co. of Utah, 117 Utah 578 , 218 P. 2d 660 , 52 A. L.

1961The defendant contends for the rule announced in Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405 , 158 S. W. 2d 721 , 171 A. L.

1961The defendant contends for the rule announced in Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405 , 158 S. W. 2d 721 , 171 A. L.

1956The only claimed error is that the terminology departs from the terminology employed by this court in Danielson v. State, 155 Neb. 890 , 54 N. W. 2d 56 .

1956The only claimed error is that the terminology departs from the terminology employed by this court in Danielson v. State, 155 Neb. 890 , 54 N. W. 2d 56 .

1955If any evidence of the other side tends to establish a fact required to be established by a preponderance of the evidence, the one who has the burden of proof shall have the advantage of it.” ' The defendant contends instruction No. 7, wherein appears the general statement “In determining any issue under the pleadings or evidence you should consider all the evidence submitted,” is not in compliance with the rule announced in Mundy v. Davis, 154 Neb. 423 , 48 N. W. 2d 394 .

1955If any evidence of the other side tends to establish a fact required to be established by a preponderance of the evidence, the one who has the burden of proof shall have the advantage of it.” ' The defendant contends instruction No. 7, wherein appears the general statement “In determining any issue under the pleadings or evidence you should consider all the evidence submitted,” is not in compliance with the rule announced in Mundy v. Davis, 154 Neb. 423 , 48 N. W. 2d 394 .

1948However, we are not unmindful of our decisions in Wozniak v. State, 103 Neb. 749 , 174 N. W. 298 , and Osborne v. State, 115 Neb. 65 , 211 N. W. 179 , wherein under a somewhat similar statute as to penalties, we in effect treated the penalties as elements of the offense, and stated that in the absence of a statute regulating the procedure the fact of a prior conviction must be set forth in the information and established by proper evidence, its sufficiency passed on by the jury, and the jury should be so instructed that they could determine whether the defendant was guilty of a first, a second

1948However, we are not unmindful of our decisions in Wozniak v. State, 103 Neb. 749 , 174 N. W. 298 , and Osborne v. State, 115 Neb. 65 , 211 N. W. 179 , wherein under a somewhat similar statute as to penalties, we in effect treated the penalties as elements of the offense, and stated that in the absence of a statute regulating the procedure the fact of a prior conviction must be set forth in the information and established by proper evidence, its sufficiency passed on by the jury, and the jury should be so instructed that they could determine whether the defendant was guilty of a first, a second

1948However, we are not unmindful of our decisions in Wozniak v. State, 103 Neb. 749 , 174 N. W. 298 , and Osborne v. State, 115 Neb. 65 , 211 N. W. 179 , wherein under a somewhat similar statute as to penalties, we in effect treated the penalties as elements of the offense, and stated that in the absence of a statute regulating the procedure the fact of a prior conviction must be set forth in the information and established by proper evidence, its sufficiency passed on by the jury, and the jury should be so instructed that they could determine whether the defendant was guilty of a first, a second

1948However, we are not unmindful of our decisions in Wozniak v. State, 103 Neb. 749 , 174 N. W. 298 , and Osborne v. State, 115 Neb. 65 , 211 N. W. 179 , wherein under a somewhat similar statute as to penalties, we in effect treated the penalties as elements of the offense, and stated that in the absence of a statute regulating the procedure the fact of a prior conviction must be set forth in the information and established by proper evidence, its sufficiency passed on by the jury, and the jury should be so instructed that they could determine whether the defendant was guilty of a first, a second

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1941Responding, the defendant contends that the rule of the above mentioned cases does not apply when the object, is of a color similar to that of the roadway or blends with the color of the roadway and cites Tutsch v. Omaha Structural Steel Works, 110 Neb. 585 , 194 N. W. 731 ; Day v. Metropolitan Utilities District, 115 Neb. 711 , 214 N. W. 647 ; Adamek v. Tilford, 125 Neb. 139 , 249 N. W. 300 .

1908The defendant contends that the presumption is that the plaintiff entered under his deed, and the possession given him was only co-existent with his title; and that when plaintiffs’ grantor quit possession of the disputed strip, the seizin of the true owner was restored, and an entry afterwards by the plaintiff upon such strip constitutes a new disseizin; and cites Graeven v. Dieves, 68 Wis. 317 , Dhein v. Buescher, 83 Wis. 316 , in support of liis argument.

1908The defendant contends that the presumption is that the plaintiff entered under his deed, and the possession given him was only co-existent with his title; and that when plaintiffs’ grantor quit possession of the disputed strip, the seizin of the true owner was restored, and an entry afterwards by the plaintiff upon such strip constitutes a new disseizin; and cites Graeven v. Dieves, 68 Wis. 317 , Dhein v. Buescher, 83 Wis. 316 , in support of liis argument.

1908The cases above cited have been limited and very clearly explained in the later case of the Illinois Steel Co. v. Budzisz, 106 Wis. 499 , where it is said: “If a person, not the true owner, but hostile to him, be in actual possession of a part of a larger tract of land, under a deed describing the whole, in law he is in actual possession of the Avhole for the purposes of the statute of limitations, though as to a part the possession be in fact only constructive.

1907However, the evidence fully justifies the conclusion that the liquors sold were, in fact, beers, and this court has held, in the case of Peterson v. State, 63 Neb. 251 , that the courts of this state will take judicial notice that beer is an intoxicant.

1905On the other hand, the defendant contends that the rule in the Todd case and in the case of Rath v. Zembleman, 49 Neb. 351 , applies.