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

stead of good results. In the heat OF
the forum lawyers in our Jurlsdlc-
ton. who feel the weakness of their
cause. upon the trial seems to be dis
Dosed solely for the sake of self sat
isfaction. to harass and delay the fin
al determination of the cause by the
Introduction of a mass of irrelevant
and incompetent matter, known to
them to be such. under this law. Of
tentimes the expense incident to the
preparation of the record and the per-
lection of an appeal in such cases is
prohibitive. and justice is thereby mis-
! carried.
In my judgment the time has also
| come when we, as lawyers, should
rely more upon the justice of the
cause. as determined by the appli-
cation of basic principles coupled with
the needs and necessities Of altered
conditions than upon decided cases
of more or less antiquity as the rule
which should govern the decision in
the case.
In our criminal jurisprudence there
is no doubt bur that changes should
be made. We have encouraged and
are fostering practice which has
for it's theory an appeal to intricate
techncalities invoked with an incom.
parable subtlety and attempt to be
applied with a superficial nicely
beggaring description. This we do I'M
der the guise of our too much laud
ed desire to afford the defendant
fair trial. or perhaps upon the theory
that it is better that SO guilty men
should escape than that one innocent
man should be convicted.
Contrast, if you please. the recent
trial of the King VS.. Crippen. in Eng
land. with the trial Of cases involving
like charge in this state and in other
states Of this country. That the de-
PENDANT in this case had and will
have a fair trial and lawful deter
mination of the cause is assured, while
the expense. both in money and time,
incident to the disposition of the mat
ter as compared with what it would
have been had it occurred in North
Dakota. was and will be a mere baga-
telle. do not mean to imply that
had this case been tried within our
jurisdiction the defendant would have
been acquitted, but l do claim that
the final disposition of the cause
would undoubtedly have required the
expenditure of much more time and
land. That there is remedy for these
evils in both our substantive law and
, our practice there can be no doubt,
and that the lawyers Of this country
are amply able to discover and ap-
ply it I am convinced. Too much at
tention has been given, and am con-
strained to add is still given to the
technical objections raised against
criminal informations and indictments.
In the case of State VS.. Tonne, 107
N. W. 524. our supreme court re-
versed conviction for embezzlement
upon the sole ground that the word
"or' was used in stead dof the word
"and' in the information, although
the proof was sufficient to sustain
verdict upon either theory.
The statute, under which the con.
viction was had, defines the crime Of
embezzlement as "the fraudulent ap-
preparation Of property, or secreting
with intent to fraudulently appropriate
it." and the information followed the
statute, but our supreme court held
that it did not describe the means
by which the embezzlement could be
committed, but rather two different
acts, either of which would constitute
the offense
Now, in the last analysis, and since
the charge involved but one transac-
tion-that of the acts and omissions
of the bank cashier-it is difficult to
understand how the defendant was
deprived of any substantive right be-
cause the information alleged that he
"wrongfully appropriated or wrong
fully secreted the property. ETC." OF
course our learned court, in render
ing the decision. did not resort to a
basic principle and reason therefrom
to the conclusion reached, but rather