The Fargo forum and daily republican., 1908-10-12
DECISIONS OF THE SUPREME
COURT OF NORTH DAKOTA

In the supreme court. Filed Oct. 10.
sos.
p. S. Hilliboe, as adnlinistrator of
he estate of Elias Ertresvaass deeeas-
ID, appellant, VS.. N j. Warner, ct al,
DEFENDANTS; w. r. Mcintosh, ct al, re-
pondents.
/. A general objection to deposi-
don on the ground of the incompetency
II irrelevancy of the evidence contain
I'd therein, is not tenable where the
deposition contains evidence material
o the issues not subject to such OBJ
ection.
g. The admission of incompetent or
irrelevant evidences over objection on
trial to the court, is not prejudicial
error where there Is In the record un-
disputed evidence not objected to,
pearing on the same issue as the tes-
imony objected to.
8. The erasure by or on behalf of
me obligee of surety's name on a
contractors bond releases all sureties
m said bond who signed after the
urety whose named was erased and
sefore the erasure, unless they con-
ented to the erasure
f. The possession Of bond by the
,bligee while an alteration is made
herein, together with the fact that an
lction is commenced on the bond In its
Uttered form, is sufficient evidence to
ustain finding that the alteration
vas made by or with the consent of
he obligee.
(Syllabus by the court.)
Appeal from the district court of
Inf%fnnngI W Hon EyHxxyo ~
Burke, special Judge, presiding.
Noble, Blood & Adamson; (Ball.
Watson, Young & Hardy of counseD
or appellant.
A. G. Burr, for respondents.
Judgment affirmed.
Opinion by Morgan, @. J. All con-
mr.
Fhe State Of North Dakota, respond
ent, v. William H. Denny appellant,
1. An instruction defining the term
feloniously" as "an intent to commit
l felony or an intent to commit a
wrongful act which might result in the
commission of felony" ETC., is err
oneous. BY the use of the word
might" the jury was told In effect
hat person is by law presumed to
intend all the possible rather than the
easonably probable consequences of
iis voluntarily wrongful act, Said
definition was also erroneous as 1t in
Effect Informed the jury that an intent
o commit wrongful act which might
esult in receiving stolen property,
rnowing the same to be stolen, con-
ltituted a felonious intent within the
meaning of the law relating to the Of
ense charged in the information, to-
Wit: Receiving stolen property know
ng the same to have been stolen.
2. Said instructions although erron-
,ous, was not prejudicial In view Of
he subsequent explicit instructions
given by the trial Judge which are re-
erred to at length in the opinion.
8. In a prosecution for receiving
,tolen property knowing the same to
lave been stolen, it is unnecessary to
1lege or prove who. the thief was. It
s accordingly held that an instruction
the effect that 1t is inlmaterial who
committed the larceny was not pre-
judicial in view of state of the proof
which in no manner tended to impH-
ate the defendant in such larceny.
4. An Instruction that guilty
knowledge is made out and sufficientiy
lroven to warrant conviction in that
aspect by proof that the defendant
eceived the property under such cir
unnstances as would satisfy a man of
ordinary intelligence and caution that
hey were stolen" is erroneous. Such
Instruction lays down an arbitrary rule
or determining guilty knowledge, u.s.
ng as test facts which would salts
y a man Of ordinary intelligence and