Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-02-23

BISMARCK DAILY 1RlHuME. sU
barrels, that it appeared that this
question may not have been proper.
We do not deem it important to
discuss or determine whether it was
ultimately proper or not. II was
proper as the record stood, when it
was asked, and after the Testimony
given by Johnson, no motion to strike
out evidence was made and the rec
ord shows no request of the court
to instruct the jury to disregard it.
State v. Vey Is. d. III N. W. 719.
The only other question relates to
the record made in this Office of out
going freight, which record showed
the receipt and shipment by him of
various beer receptacles. This record
contained description of the articles
shipped and the name of the con-
signor, he being the defendant. and
the witness testified that he obtained
his information from the defendant;
that the defendant himself made way
bills for the articles, which described
them. 1t appears to us that with
reference to such articles as the de-
PENDANT himself described in the way
bills made by him or described to
the agent, this evidence is clear COM
petent, as tending to show that dis
position had been made OF the beer
received, and indicating that the de-
PENDANT was doing a saloon business.
Regarding some of these items, the
testimony OF, the witness was quite
general as to information received
from the defendant, and while it
might be inferred that the defend
ant personally described to the. wit
ness all the articles shipped, yet, We
think the testimony as. whole in
dicates that he had no knowledge of
some of the articles which were not
received by himself, except as he
obtained his Information from this
record. But no. objection was made
which disseminated or distinguished
between the items received by the
witness himself, and those which may
have been received by his clerk. To
have constituted error in the sadmiss-
iona of the record, the defendant
should have pointed out and objected
to the specific items, not received by
or described to the witness by the de-
fendant, and while the evidence might
even then have been admissible, we
are satisfied, that if4not properly ad-
missible the objection made was in
adequate to conclude under the cir
cumstances.
Had this objection been sustained
it would have concluded the entire
exhibit, including the record of the
shipment of the articles described by
e-efentsrt-< 10 the witness. as well
as those articles apparently received
by the witnesses clerk. The record
OF the shipment of the items describ-
ed to the witness by the defendant
was clearly admissible, and il he de-
sired to exclude the other items. they
should have specified in detail in the
objection. 1t was no part of the duty
OF the court to sift out the items
which We're proper, and those which
may have been improper. That duty
belongs to the attorney making the
objection, and the objection should
have been presented to the court
could have ruled upon the items sep
arately, If necessary. Without deter
mining whether all the items were
evidence, or whether proper foun-
dation had been laid for all, of them.
we deem it beyond question that some
OF them were competent, and that
therefore no error was committed In
ASSSAvAAS SA1o Stlu6uCc. Inc rule 1S
that where parts of record are adj
missible in evidence, an objection to
the whole. or an objection which
does not specify the parts which are
not admissible is properly overruled,
and this rule also applies to the mo-
tons to strike out. Kolka v. Jones.
g N. D. 461; Boyland v. Mcmillan.
III N. w. $50 (Iowa); Roeiler v.
Hall, GA N. w. $50 (Minn.): walrud
v. Webster Co. 81 N. w. 5ss (1owa):
Sullivan v. Necoulin, "a. N. w. 97s
iowa; Thompson on Trials. Sec.
719; IL CYC. 567.
Finding no reversible error, the
Judgment of the district court is at
firmed.
All concur.
nyynnr..r