Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-07-14
From the High Law Court.

case without showing actual negligence,
by proving the value of the animal and the
of cars: but in such case if the defendant,
to overcome the statutory presumption of
negligence arising from the killing, shows
conclusively by undisputed evidence that
the train in question was at the time of
the accident IN good repair and condition
and was equipped with the best modern
appliances and Improvements III use, and
was operated skillfully and with due care,
then and in such case the statutory pre-
sumption of negligence arising from the
killing, is rebutted and entirely overcome,
and where, in such case, at the close of the
testimony defendant requested the trial
court to direct a verdict for the defendant
such refusal was reversible error.
Opinion by Wallin, j.; L. w. GammOns
and Alfred II. Bright for defendant and
appellant; w. H. Rowe and j. NJ. Austin
for plaintiff and respondent; reversed and
a new trial ordered.
State of North Dakota vs.. Arthur Nc
Gahey came up from Grand Forks
county, where the defendant had been
convicted of the crime of shooting at
one Thomas Hill, with intent to kill.
For this little indiscretion Judge
Templeton sentenced him to the peni-
Tertiary for three years and six months.
A writ of error was sued out and the
case argued in this city last May. The
following is the syllabus of the court:
1t is proper upon the redirect examina-
ton of a witness in a criminal case to per-
| nit him to state facts and circumstances
that tend to correct or repel any wrong
impressions or differences that arise from
| the matters drawn out IN cross examina-
ton, and this rule is not changed because
such facts and circumstances may be of
SUCH a character as to prejudice the de-
| PENDANT in the minds of the jury.
An error of the court in ruling upon the
admission of evidence that c%onclusively
appears to have been %innoxious. and could
have worked no prejudice to the party OBJ
jecting is no ground for reversal.
witness volunteers incompetent and IT.
responsive matter in his answers and
which matter has but an indirect bearing
upon the issue upon trial, and is promptly
stricken out by the court, in the presence
and hearing OF the jury on motion of OPP
posing counsel, such action amounts to a
Withdrawal Of such matter from the jury
and no duty rests upon the court, in the
fabsence of any request %thereunto, to fur
ther caution the jury either at that time
or III the general charge, to disregard such
matter.
No duty rests upon the prosecution in a
criminal case to produce and swear As
witnesses for the state, all the eye wit
neSSeS to the transaction where the teSti-
mony OF the witnesses called. or some of
them, is direct and positive II apparently
covers the entire transaction.
The control OF the remarks of counsel
for the state during a criminal trial is a
matter largely in the discretion OF the trial
court, and where the Objectionable re-
rs would not be likely III the attending
circumstances to prejudice the cause OF
the accused in the minds of honest men of
fair intelligence. the failure of the court
to strike out such remarks or caution the
jury against them is not such al abuse of
discretion as will constitute error.
While q party in an action cannot object
to questions asked a witness upon cross
examination tending to elicit proof that
the witness had been guilty of practices
that would effect his credit before the jury
yet where such matters are purely col
lateral to the issue, the answer of the wit
ness is final aud it is not proper to introduce
contradicting evidence.
The state has the right on cross exami-
nation to show the nature of the relations
existing between the witness and the &C.
cuSed so far as their relations ale such as
would create a bias on the part Of the wit
ness that might reasonably be supposed
to affect his testimony, and this rule can
not b. changed by the fact that these re.
lations may be such as to prejudice the &C.
cused in the minds of the jury.
l: is not error to refuse an instruction
requested that correctly states the law and
is applicable to the case when the court in
its general charge mas fully and specific
ally covered the same points.
/ (N,SCSDn ~, Cowtkclo,Naxr n wv Ii
Standish and Tracy Il. Bangs for defend
ant in error; John NJ. Cochrane for PLAIN
tiff in error; judgment Of conviction at
tirmed.
County Board OF Equalization.
The county commissioners met Mon
day morning in adjourned session.
Nothing Of interest was done excepting
the approval of the additional bond of
$4,000 required from the treasurer, and
the board then met as a board lof equal.
ization. Commissioner Cahall intro
duced a resolution, asking for the
opinion Of the states attorney as to the
assessment of grain owned by farmers
and others. There seems ONE dispute
about this,asome OF the grain having
been assessed, and some not.
Prayers for reduction were presented
from Chas. Wheeler, on stock, $3.50, Bis
marck Elevator company, from $4,000
to $4,000, F. r. Little. credits, sl75, D.
NJ. Coconauer, personal property, s115.
The petitions were all left over until to-
day.