Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-03-22
GETS A new TRIAL.
The Supreme Court Directs a New
Trial to Be Granted In the
Kent Case.
Decision In the Case is Filed In the
Office Of the Clerk Wednesday
Morning.
The Opinion Concurred in BY the
Three Justices -Text of
The Syllabus.

Gets Il New Trial.
Myron r. Kent. who now languishes in
the Morton county Jail at Mandan, I'M
der sentence of death for the murder of
his wife near Mandan a year ago, will
lave another trial for bis life and lib.
erty.
A"e oseclsion of the supreme court IN
tbs matter was handed down Wednes-
day. Error is found in the refusal of the
trial court to call in another judge, upon
the affidavit OF prejudice by the accused,
and in one or two other rulings in the
admission Of testimony, and upon these
the order for a new trial is based.
The case is so we'll known that it is
needless to enter into details, beyond a
brief resume of the facts leading up to
the appeal for a new trial. At his trial
for the murder of his wife, Kent was
found guilty and sentenced to be hanged
February % last. Prior to the CON-
mencement of the trial an affidavit was
filed by Kent, alleging prejudice on the
part of the trial Judge, Winchester, and
asking that another judge be called.
The motion was denied. After the YER
dict was reached a motion for a new trial
vas made on the ground that such re-
fusal was error: that the allowing of At
torney Nye to assist in the prosecution
was error, and error was alleged in other
rulings, although these two were the
principal sources of argument. The mo-
ton for a new trial was denied, and the
case was appealed to the supreme court,
and hearing had Feb. IS, a stay of execu-
ton beng granted until that time. The
case was argued by Attorney NJ. A. Hill
dreth, of Fargo, for the defendant, and
Attorney Voss, of Mandan, for the state.
The opinion was written by Judge Corliss
and is Il quite exhaustive one, being con-
Cured in by Judges Bartholomew and
Wallen. The syllabus is as follows:
When a person on trial for felony pre-
sents to the Judge of the district in which
the indictment is pending, his affidavit
stating that he cannot have an impartial
trial by reason of the bias aud prejudice
of such Judge, it is the absolute duty of
such Judge to call in another Judge to
try the case. For him to refuse to do SO
is error. The word may in the statute
(sec. 1872, compiled laws must be con-
strued as must" under a familiar rule
Of construction.
1t is not error for the trial Judge to
permit an attorney who is neither a resi-.
dent nor a member of the bar of this
state, but is a nonresident of this state
and who is employed solely by relatives
of the person for whose murder the &C.
cused is being tried to assist the prose-
cnting attorney on the trial, the latte
having requested the Judge that such
case.
Under section 1860, compiled laws, it is
proper to charge as principal in the
homicide one who counsels and directs a
murder, and who therefore would have
been an accessory before the fact at
common law. The information or in
dlctment may aver that he himself fired
the fatal shot, which was in fac: fired by
the one he lnstigated to commit the
crime.
Great latitude should be allowed in
the cross-examlnatlon Of an accomplish.
Hence 1t was error for the court to re-
fuse to allow counsel for the accused to
ask the accomplish, who had by his own
testimony made out a case Of murder
against himself, whether he expected to
De hung.
Held, further, that it was error to re-
fuse to permit counsel for the accused to
prove as bearing upon the credibility of
the accompllce, that no proceedings what
ever had been instituted against him for
the murder he had confessedly commit
ted, although several months had elapsed
since the crime was perpetrated.
In this state no person can be con-
victed on the uncorroborated testimony
OF an accomplish (Section 1884, Com
piled Laws). The confederation must
come from some source Independent of
the accomplish. But it is not necessary
that the corroborating evidence should
be sufficient in itself to support a con-
victlon. 1t is enough if it tends to con-
meet the accused with the commission of
the otfense. 1t must, however, tend to
connect the accused with the commits
sion OF the crime. Evidence corrobo-
rating the accomplish as to the fact that
a crime had been committed, or with re-
spect to the fact that he, the accomplice,
Is guilty thereof, will not satisfy the re-
q~uirements Of the statute.
Instructions given by the accused to
the accomplish touching the story the
latter was to tell in explanation Of the
killing, may be sworn to by the accom-.
plice, and it is not error for the court to
receive in evidence a book in which such
instructions are written down by the &C.
complete when the latter swears be wrote
them down as they were given to him by
the accused and under his direction.
Nor was it error for the court to allow