Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-12-22

to make application and proof of com
pliance with the Judgment of sus
pension before he can be reinstated
Burr, Special Judge.
Reversed.
William Maloney, for appellant.
A. j. Bessie, Edwin A. Palmer and
Frank Fisk for prosecution.
Opinion of the court by Spalding,
j., all concurring.
State Of North Dakota, Plaintiff and
Respondent, VS.. Henry Fujita, Defend,
ant and Appellant.
l. Following the rule announced
in State VS.. Ekanger, s N. D. $50, and
State vs. Warner 16 N. d. So, it is
held, that juror who states on his
vOir dire that he has formed and en-
tertains an opinion as to the guilt or
innocence OF the accused, which it
will require some evidence to remove,
is not disqualified from serving, where
1t appears that such opinion is based
wholly upon newspaper accounts of
the transaction, and cofmon street
gossip, provided, it satisfactorily ap-
pears to- the court, that the juror can,
and will, if accepted, not withstanding
such opinion, fairly and lmpartially
try the case on the testimony adduced
and the law as given by the court.
2: The decision of the trial court
in such case is entitled to great re.
when it clearly appears that there was
an abuse Of discretion.
3. The trial court has large dis.
erection in permitting leading ques.
tfons.
4. A man who attempts by any act
to have carnal knowledge of a girl
under the age Of consent, may be
convicted of an assault with intent to
commit rape.
8. Evidence examined, and held
sufficient to sustain the verdict.
8. The charges of the court to the
jury fully and fairly state the law of
the case.
T. Record examined. Held, that
counsel for the state made no remarks
In the arguments to the jury not war
ranted by the evidence.
(Syllabus by the court.)
Appeal from district court of Cass
county, Pollock J.
Action by the state of North Dakota
against Henry Fijuta.
From a judgment in favor of plain.
tin. and from the orders DENYING de-
PENDANTS motion for a new trial de-
PENDANT appeals
Affirmed. - =
Taylor Crum. for appellant
Andrew Miller. Attorney General,
Arthur w. Fowler, States Attorney,
for respondent.
Opinion of the court by Carmody,
j., all concurring.
State of North Dakota, respondent Va
W. II. Gottlieb. appellant.
l. The constitution of North Da~
kota confers no right to preliminary
examination. 1t is accordingly held
that section 35, chapter so, laws of
1909 OF this state, which provides
that mo preliminary examination
shall be necessary before trial in the
criminal actions in the county court"
is not unconstitutional.
z. The states attorney instituted
- NAA''AAAe%A u\L1oIl Tue COUNTY court
by filing therein an affidavit in the
form of a criminal complaint sworn
to positively wherein facts were stat.
ed showing the commission by the ap-
pellant of the crime of maintaining
a common nuisance in violation of the
prohibition statute of this state and
by filing at the same time his infor.
nation In due form and verified on
information and belief in accordance
with the statute. A motion was made
to quash such information which was
ovcrruled. Held not error for rea.
sons stated at length in the opinion.
3. The provisions of chapter 80,
laws of 1909, authorizing the institu.
ton of criminal proceedings in the
county court by the filing of 1nforma
lions by the states attorney, should
be construed in connection with Sec
ton 10 of the constitution which pro-
vides that mo warrant shall issue
but upon probable cause, supported
by oath of affirmation"
a. At the time the states attorney
filed his information in the county
court he also filed a positive affidavit
in the form of criminal complaint
setting forth all the facts alleged in
such information; held, that this was
a sufficient compliance with section
18 of the constitution.
5. The prosecution offered in evil
dence certified list of special tax
payers furnished by the collector of
internal revenue, which list includes
defendants name, and the same was
received in evidence over defendants
objection. Held, error for reasons
stated in the opinion; but further held
that such ruling was non-prejudicial
as the record discloses that had such
evidence been rejected no Verdict
other than that of guilty could have
been rendered by honest jurors under
their oaths, the uncontradicted testi-
mony of three witnesses establishing
defendants guilt beyond the perad-
venture of doubt.
6. After the case had been sub,