Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-02-21
MAJOR MURPHY GETS new TRIAL
Supreme Court Hands Down Decision to That Effect Based
on Principle Point That Judge Pollock Entered
Jury Room During Deliberations

munication by word or writing not in
open court affects the efficiency of
jury trials as a means of accomplish
ing justice aftergiving all parties full
opportunity of being heard at all stages
Of the trial. A strict compliance with
this practice of having all proceed
ings in court in the presence of coun-
sci, or on notice to them, unless waiv-
ed, is better than to countenance vio-
lations thereof unless prejudice is
shown. The state urgently insists
that prejudice could have resulted
from what was done or said in this
case, but we shall not consider that
question. However the fact that the
foreman said that he thought they
could not agree when the judge first
spoke to them, and that they did agree
in five or ten minutes thereafter,
would be stubborn fact for consider
alton if we entered upon an inquiry
as to the effect upon the jury of the
to the room. We think that any com
munication in this way as to the case
should be prohibited and held preju-
dicial. 1t Is against the policy of the
law to indulge in secret communica-
lions or conferences with the jury
or with jurors in reference to the
merits or law of the case. To deter
mine in each case whether prejudice
resulted, would be difficult If not inn
possible and justice will be better
subserved by avoiding such commun-
ications entirely.
The authorities are practically unan-
imous in condemning such commune
cations and in holding them prejudi-
cial as a matter of law.
The Offense with which Murphy
was charged and of which he was
tried and convicted was forgery in
the third degree. Murphy had a con
tract for the working out of taxes
arising from road work for the Great
Northern and 500 roads. Road ov-
erseers would certify to the work
done and upon this certificate Muir
ply would collect. In the case for
which he was tried. Murphy was
charged with forging the names of
VIM. Crowder to road tax receipt
for $231.30. Crowder was the road
overseer for Ross township in Ward
county In the trial of the case Muir
ply admitted signing the name of
Crowder, but claimed -ee did SO by au-
thority of Crowder and that there was
no intent to defraud in the matter
| Murphy is a we'll known resident
of the state and there has been gen
eral interest in the case. He was
at one time a prominent candidate
for the Office of commissioner of In
dian affairs. There have been two
trials of his case, in the first of which
the jury disagreed. It is doubted in
many quarters whether there will be
another trial of the case.
The syllabus of the opinion of the
court is as follows:
On prosecution for the crime OF
uttering forged instrument know.
ingly with intent to defraud, proof OF
similar offenses of forgery is admis.
sible only as bearing on the intent
with which the act for which the &C
lcused is informed against was done
i Proof of similar offenses in such
4 cases Is admissible only as having 8
4 bearing on the intent, although the
accused admits at the opening of the
trial that he signed the name of the
person to the instrument, whose name
is claimed to have been forged, ant
knew when he uttered the instrument
i that he had signed the name of sucl
person to such instrument.
Proof of similar offenses in sucl
cases as bearing on the intent alone
is admissible, although the jury woult
be justified in finding fraudulent in
tent without such proof, If they fount
THAT the accused was not authorize,
! to sign the name of the person who's.
: name is claimed to have been fore
t ed.
81 Declarations OF party to a con
: tract, as to the terms of the contract
are not admissible as evidence as
Q part Of the res gestae when made al
3 ter the contract is completed and no
: in the presence Of the parties, al
+ though made very soon after the pal
!, ties separated.
2 Such declarations in this case cor
] sidered, and Held: Not within the ez
j ception to the rule against hear
9 say evidence that such declaration
. are admissible as spontaneous expires
0 sions made in reference to the cor
tract.
q Entering the jury room by the tria
9 Judge In the absence of the attorneys
at the request of the jurors, after the,
g have retired to delihera&o an thoi