Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1903-11-05
INTERESTING CASES DECIDED.

Supreme Court Hands Down a Decis-
ion in a Number Of important Cases
Tough Case Reversed.
The supreme court has reversed the
district court of Pierce county, Judge
Cawan presiding, in the case of the
State VS.. VIM. B. Tough. who was
convicted of burglary in the third de
gree, in the entering of a railroad car
with intent to steal. The points Np-
on which the reversal is ordered are
set forth in the syllabus. which says:
l. The statute, section SOS2, Re
vised Codes, specifies the ground up
on which an indictment may be set
aside on motion of the defendant, and
these are exclusive of all other
grounds.
2. Where a duly licensed and prac-
ticing attorney appeared with and as
sisted the states attorney in the pros
ecution of a criminal cas- in the dis
| trict court, with the consent of the
presiding judge of the district, it will
be presumed, in the absence Of a
showing to the contrary, that he was
rightfully there, either under an or
der of the court made pursuant to
and for one of the causes specified
in the statute, or because of an en-
plOyment by the county commission
ers of the county, with the advice and
consent of the states attorney. If
any error was committed by the trial
court in overruling defendants objec-
ton to the participation OF such attOr-
ney in the trial of the case against
him. it is not available to defendant
because not made to appear upon the
record of the appeal.
3. An indictment for burglary in
the third degree, for breaking and e n
tering a railroad car with the intent
to steal. as defined in section 7406
Revised codes, will sustain a cOnvic.
ton for the minor and constituent Of
Tense defined by section 7411, Re
vised Codes, of entering a railroad
car with intent to steal.
4. A conviction for entering a rail
road car with intent to steal will be
sustained against the objection tina
the evidence is insufficient to show 6
burglary. the verdict amounting to al
acquittal of burglary.
5. Upon a trial for burglary, thu
accused being charged with breaking
and entering a railway car in which
property was kept, with intent t.
steal therein, under section 74O6, Re
vised Codes. and in defense testified
in effect, that he entered the car t.
obtain coal in reliance upon state
ments made to him by the person
} who accompanied him and assisted il
[ taking the coal that such person had
license to take coal from the car; &C
CuSeU was tLlllllcu ~ nave tHS "a
instructed upon his request as to tn
statutory definition of larceny, in or
der that they might be informed tina
to convict they should find he intend
ed all that is essential to constitute
larceny.
6. A defendant has a right to hav
an instruction based on his own ties
timony and to testify as to his inten'
Z. On the trial of a party for bul
glary with intent to steal, where tn
evidence upon material points in tn
case is conflicting. it is error to refus
an instruction for the defendant fail
ly the law on the theory of the cas-
%contended for by him, having a bas
>, in the evidence on which to rest.
(Syllabus by the Court.)
Appeal from district court. Piert
county; COwan, j.
Defendant was convicted, under SCI
ton 7411. Revised Codes, of the o
Tense Of entering a railroad car wit
intent to commit larceny, and appeal
Reversed.
George A. Bangs, for appellant.
b. l.. Shuman. states attorney, fc
the state. Opinion by Cochrane, J..
Prairie Fire Cases.
Judge Cowan is affirmed in the cas-
of John Johnson VS.. the Great MOI
thern railway company. This is on
of 81 prairie fire damage cases brougf
from Williams county against tn
Great Northern road. Judge Cowa
denied a motion to make the con
plant in the cases definite and certai
and from this the road appeals. Tn
court in its syllabus says:
/. In a case where the complain
states that a fire was negligent
started by n Of defendants Ell
gines on September 18th. 1902. 4