The Fargo forum and daily republican., 1908-10-12

caution. The standard by which to
impute guilty knowledge is not that of
man of ordinary intelligence and
caution but the test is a personal test
OF the defendant. Under such In
struction no discretion was vested in
the jury and hence the same consti-
tuted an invasion Of the province Of
the jury. (Spalding, ]. dissenting.)
5. Among other things the jury was
instructed as follows "This felonious
intent to warrant conviction must have
consisted OF his Intentional receipt of
said stolen property knowing the
same to be stolen, with further intent
In defendant in receiving the same to
deprive the owner of said property, or
to derive gain, profit, or consideration
himself from receiving or concealing
said property or the disposal thereof"
Said instruction was proper as a per-
son may be convicted even though he
received the stolen property for the
purpose of returning it to the owner,
If his purpose was also to receive q
reward therefor.
6. On cross-exanination of one Of
the states witnesses and for the pur-
pose Of Impeachment he was asked
whether as a matter of fact he was
running certain saloon in violation
of law and without license. TO this
question counsel for the state objected
and the objection was sustained. Held
error Such question was admissible
under the general rule that for the
purpose of impeachment a witness
may be asked questions as to collat-
eral matters, the answers to which
may tend to degrade or otherwise dis
credit him.
Z. The state was permitted over de-
PENDANTS objection to give secondary
evidence as to the contents of GER
tain copy of letter claimed to have
been written By one Miller to defend
ant and tending to show defendants
guilty knowledge in receiving the stol-
en- property.
Held, for reasons stated in the opin-
ion. that such ruling constituted pre-
judicial error for the reason that no
sufficient foundation for the introduc-
tion Of such testimony had been
shown.
s. The states attorney, who was a
witness for the state, was permitted to
give his opinion or conclusion to the
effect that the alleged copy of letter
claimed to have been sent from Mon
tana to defendant was on letter paper
different from that in use by the Great
Northern hotel at Williston. He was
non-expert witness and his testi-
mony should have been restricted to
facts, leaving it to the jury to draw
their own inferences or conclusions
therefrom.
8. Certain other rulings in the ad-
mission of testimony examined and
held not error.
TO- Evidence examined and held
that the rulings of the trial court in
denying defendants motions to advise
an acquittal and for new trial were
correct. ,&
(syllabus by the court.l
Appealed from district court Will
Nliams county; E. B. Goss, Judge.
From"a Judgment of conviction and
from an order denying motion for a
new trial defendant appeals.
Reversed.
Palda & Burke (Engerud, Holt &
Frame of counsei) for appellant.
r.. F. iMcGue, attorney general, and
Van r. Brown, states attorney for
respondent, 4
Opinion by Fisk, J. Morgan, c. J.,s
concurring,
spalding, j., concurs specially, as
follows:
II adhere to my opinion in State VS..
Hazlett, 16 N. D. 426 as'relating to the
fourth point above and forsthe reasons
I there gave.
"In other respects concur in the
foregoing opinion" t9