Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-12-30

bodied in the information and a portion
of such testimony consisted OF certain
made by the appellant to
the witnesses in the nature of confes-
sions and to the effect that he (the APP
pealant) had killed the deceased. The
offered no evidence CONTRA
dieting the witness for the state upon
feature of the charge as alleged in
the information. The only testimony
offered by the appellant related to the
defense OF, insanity. Upon this state
OF the evidence the trial court in the
course of its charge to the jury in
strUcted them as follows: with re-
gard to the evidence in this case there
is very little comment required from
the court except upon one question.
others being hardly matters of dis
.prDte. That the defendant struck An
drew Mellem with a knife is abundantly
proved, If You believe the testimony Of
the state in this case. That the wound
caused his death has been testified to
by the surgeons most competent to
speak and they are uncontradicted.
That the homicide was committed with
malice aforethought or generalization,
If the defendant was capable of crimi-
nal intent, the malice and premedita-
ted design can hardly be gainsaid, if
you will bear in mind what I have al
ready stated, and if you believe the
testimony OF the state in this case, and
in fact, there Is mo Denial made by the
defendant of ever having committed
the act. y Evidence has been
submitted to- you in this case by a
number of witnesses showing that the
defendant has admitted forming an
idea to kill the deceased, and also that
he did strike him on the neck with a
knife, which wound was the cause OF
deceased's death, and the court in.
stTlcts YOU as a matter of law that the
admissions of the defendant are legal
and competent evidence against him.
Therefore all these facts and admis-
sions, if believed by You, come up to
the full measure of proof required to
establish what the law denominates
premeditated design and malice afore-
Thought, If the defendant was capable
of forming an intent. And thus, I
aprehend that you will have little diff
Guilty in reaching a conclusion as to all
the elements that make up the crime
charged in the information unless it
be one of sound memory and discre.
ton, as it is called, which is only an
other expression for a sound mind.
We NOW approach the difficult and
serious question in the case" Held,
that the Language OF the charge. as
above quoted gives clear expression to
the views of the presiding judge upon
the weight and effect Of the evidence
offered in behalf of the state, and,
hence the same is prejudicial error.
In other portions of the charge, the
jury were instructed to the effect that
the trial court desired to avoid giving
expression to its views to the jury
upon the weight of the evidence OF
upon the credibility of the testimony
and of the weight and effect Of the
evidence. Held that such portions OF
the charge do not operate to cure the
error involved in instructing the jury
in the language Of the charge which
has been quoted. @
Held, further, constituting statutes
Eembraced in the Code of Criminal Pro-
cedure, SECTIONS 8176 and S217, Re
vised Codes of 1899 that the common
law rule which prevails in some of the
states and i'm the federal courts per-
Knitting trial courts in charging juries
to give expression to their views upon
the %credhbility of testimony or its
weight or effect, has ben %abrogated by
statute in this state. The rule pro-
mulgated in Territory VS.. OHare, 1 N.
D. 80, is adhered to and held to be in
force under the existing statutes.
The plea of not guilty puts in issue
every essential element OF the offense
charged and until this issue is deter
mined the courts of this state are in
Inhibited, under the statute, from in
s~tructing the jury that any essential
fact lis established and this is true in
a case where no evidence is offered to
disprove the fact. The jury has the
right to disbelieve and wholly reject
the testimony of amy witness whether
he is contradicted or not, and when
this is done ~wrongfully the court is
poWerless in a criminal case to SET
aside a verdict of acquittal.
"A proper request for Instructions
was delivered to the trial court after
the charge had been read to the jury,