Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-11-26
Supreme Court

| ue SldLe Ol NOItu DdhOLd, pldluLlu
and respondent, VS.. C. H. Albertson
defendant and appellant.
1. The questions raised by the as.
> signments of error relating to the de.
NAL of the defendants demand for a
bill of particulars and to allowing the
attorney general to ask questions
which the defendants claims assumed
facts unproven and questions which
| were leading are identical with tthe
! same questions passed upon by this
court in the case of State v. Empting,
decided at this term, and what is said
by the chief justice in that case dis
poses of these questions.
2. Section 1874, Rev. Codes 1905, re-
quires that the names of all witnesses
for the prosecution, known to the
states attorney to be such at the time
of filing the information, shall be in
dorsed or otherwise exhibited there
on, but provides that other witnesses
may testify in behalf of the prosecu-
ton on the trial of said action, the
same as if their names had been in.
error for the trial court to allow the
examination of such witnesses.
3. The information covers the time
from January LIST, 1909, until May 18th,
1910. The attorney general, against
the objection of defendant, was per.
mitted to ask some of the witnesses
this question: "How many times have
you drunk malt or beer there in the
last year and a half?" The objection
hat hpo@ o1
than alleged in the information was
overruled. This ruling, even if err
roneous, is not prejudicial. The time
inquired about was at best but a
slight variance and numerous wit
nesses answered substantially the
same question without any objection
on the part of the defendant.
4. Error cannot be predicated upon
the refusal of the court at the close
of the states case to advise the jury |
to return verdict of not guilty, as
the jury is not bound by such advice.
S. No error was committed in per-
hitting the state, after it had rested
it's main case, to reopen the case for
the introduction of the testimony of
1t is a familiar rule of
district court practice for the trial
court at any time prior to the close
of the case, in the exercise of judi
cial discretion, to reopen the case and
receive further evidence.
6. The statements contained in aft
lavits used on motion for new
trial are purely impeaching, and the
general rule is that such evidence
loes not furnish good ground for
granting new trial.
7. The question of the insufficiency
If the evidence to justify the verdict
S not properly raised.
(Syllabus by the court.)
Appeal from the district court, Bur-
eigh county, Winchester, J.
Action by the State of North Da-
zota against c. H. Albertson.
From an order denying defendants
notion for a new trial, defendant ap-
,eals.
Affirmed.
Newton & Dullam for appellant.
Andrew Miller, attorney general; Al
red Zuger and C. l.. Young, assistants,
or respondent.
Opinion of the court by Carmody,
>, all concurring.
State of North Dakota, plaintiff and
respondent, vs.. William Empting,
defendant and appellant. II
1. Whether a demand for a bill OF
PARTICULARS in a criminal case is ever
permissible in this state not decided,
ut, conceding that it may be de-
handed, it is a matter that is always
within the discretion of the trial
curt, and such discretion will not be {
nterfered with on appeal unless it
ppears that there has. been a mani
est abuse thereof.
2. The allowance of answers Is lead
ng questions or questions which as
ume facts not proven is strictly dis
retionary with the trial judges, and
nless there appears a clear abuse of
hat discretion, appellate courts will
ot disturb their rulings.
3. Whether a verdict in criminal
ase is against the evidence or not
5ill not be review on appeal, unless
be motion for a new trial specifies
3 CIIOI LudL Cuc FO1uISC d6oAA0I |
he evidence, and failure by the state
0 object to the motion for new trial
,hen made without any specification
> not a waiver of the right to raise
be question in this court.
4. Objections to questions and mo-
ions to strike out answers consid-
red, and the rulings of the trial
curt sustained.
(Syllabus by the court.)
Appeal from the district court of
'urleigh county, Winchester, J.
After a trial and conviction for
eeping and maintaining common
uisance, defendant appeals.
Affirmed.
Newton & Dullam for appellant.
Andrew Miller, attorney general,
Hired Zuger, C. L. Young and F. c.
Ieffron, assistant attorneys general,
Or respondent.
Opinion of the court by Morgan,
:. j., all cOncurring.
,dward T. Murray, for the use and
benefit of Emerson K. Bull, appel
liant, VS.. E. K. Lawson, respondent