Courier Democrat., 1903-01-08

gainsaid, if you will bear in mind what
l have already stated, and if you believe
the testimony of the state in this case,
and in fact, there is no denial made by
the defendant of ever having committed
the act. * X * Evidence has been
submitted to you in this case by num-
ber of witnesses showing that the de-
fendant has admitted forming an idea
to kill the deceased, and also that he did
strike him on the neck with knife.
which wound was the cause of deceased's s
death, and the court instructs you as q
matter of law that the admissions of the
defendant are legal and competent evi-
dence against him. Therefore all these
facts and admissions, if believed by you,
come up to the full measure of proof re-
quired to establish what the law de-
nominates premeditated design and ma
lice aforethought, if the defendant was
capable of forming an intent. And thus,
l apprehend that you will have little
difficulty in reaching conclusion as to
all the elements that make up the crime
charged in the information unless it be
one of sound memory and discretion. as
it is called, which is only another ex-
preston for a sound mind. We now
approach the difficult and serious ques-
tion in the case" Held. that the langu-
age of the charge as above quoted gives
clear expression to the views of the pre-
siding judge upon the weight and effect
of the evidence offered in behalf of the
state, and hence the same is preiudical
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 or 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 in
structing the juryin the language of the
charge which has been quoted.
Held, further, constituting statutes en-
braced in the Code of Criminal Pro-
cedure, (Sections, S176 and 82l7, Revised
Codes of 1899 that the common law rule
which prevails in some of the states and
in the federal courts, permitting trial
courts in charging juries to give express
sion to their views upon the credibility
of testimony or its weight or effect. has
been abrogated by statute in this state
The rule promulgated in Territory VS..
O'Hara, N. D. 30 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 determin-
ed the courts of this state are inhibited
under the statutes, from instructing the
jury that any essential fact is establish
ed, and this is true in case where no
evidence is offered to disprove ..the fact.
The jury has the right to disbelieve and
wholly reject the testimony of any wit
ness whether he is contradicted or not,
and when this is done wrongfully the
court is powerless in criminal case to
set aside a verdict of .acqpittal.
A proper request for Instructions was
delivered to the trial court after the
charge had been read to- the jury, but
before the jury retired for deliberation.
The trial court refused to give the in
strustion to the jury and based it's re-
fusal first upon the ground that the re-
quest was presented too late, and, second
upon the ground that the instruction
Continued on Eighth Page.)