The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-07
DR.. MOELLER WILL
| GET new TRIAL
MlNoT PHYSICIAN, CONVICTED OF
MURDER, GETS DECISION RE-
vERsED IN SUPREME COURT
-ENeERUD, HOLT G. FRAME
WERE HIS ATTORNEYS.

! DR.. Thor Moeller, the Minot physi-
cian who was defended by Judge En-
gerud OF the firm of Engerud Holt &
Frame of this city, and who was con-
Victed on a charge of murder, will get
new trial. The supreme court. in a
decision handed down late yesterday,
reversed the findings of the Ward coun-
ty district court.
Following is the syllabus of the
case:
In the supreme court, state of North
Dakota, April term, 1910.
1 The state of North Dakota, respond
emit, VS.. Thor Moeller appellant.
/ /. The principle upon which declar-
ations of a coconspirator not on trial
are sometimes admissible in evidence
against the conspirator who is on trial,
is that by the act of conspiring together
the parties doing so have assumed as a
body the attribute of individuality as
relates to the prosecution of the COM
mon design or purpose, hence, what is
done or said by any one in furtherance
of that design is the act of all. Evil
dence of such statements are also adj
missible on the ground of agency.
! 2. In the trial of physician on the
charge of Internationally causing the
death of patient by INJECTING upon
/ her a mortal wound while attempting
to induce and procure a miscarriage,
testimony of one p, was admitted re-
lating to certain statements made to
him by one D.. third party, who 1T is
claimed, had entered into a conspiracy
with the defendant TO commit the Of
Tense Such statements, regardless OF
whether q conspiracy had been proved
or not, were incompetent, for the rea-
son that they were not made in the
presence of the defendant, related to
acts previously done or to be done In
the future and were not made in fur
therance or in prosecution OF the COM
mon purpose.
g. An instruction to the jury relating
to the testimony of the witness r..
charging that Ii they found a conspir-
acy between the person ID. and the de-
fendant existed, statements made or
acts done by D. while either he or the
defendant contemplated the formation
of such a conspiracy afterwards car
ried into execution or attempted TO be
carried into execution by such conspir-
ators. or which were so made or done
rying or attempting to carry into exc
cution the plan and procure such UNI
lawful miscarriage as the result of such
conspiracy, might be considered, Is err
roneous In that 1t omits the necessary
element that such acts must have been
done or statements made in further
ance and prosecution OF the object Of
the conspiracy.
4 Sustaining objections to questions
which, IL answered favorably to the
party inquiring. would furnish only
cumulative evidence on subject relat
ing to which no conflict in evidence
arises, Is not necessarily reversible err
ror.
g. When defendant on cross exami-
nation, has drawn from witness parts
Of q conversation with third party
relating to a given subject the plain
tiff may properly require the witness
to testify to the remaining portions Of
the conversation on the same subject
s. Over defendants objection state
ments made BY the witness RI. not in
the presence of the defendant and not