The Bottineau courant., 1910-05-13
FLEMING CASE IS AFFIRMED
Supreme Court Of North Dakota Sus.
tains Decision Of Judge Kirk.

ADesAACSSA AAeAS IlHA 11SO l11C uOSl"
sion of Judge John H. Kirk of
the county court in the case of
the state VS.. VIM. H. Fleming.
Fleming vas convicted of as
sault and battery and Judge
Kirk sentenced him to pay a
fine of 500 and serve a Jail
sentence of twenty days. He
appealed the case to the
supreme court with the above
result.
The syllabus of the case fol-
lows: \
In the supreme court. State
of North Dakota, April term,
1910.
State of North Dakota, res
pondent; VS.. VIM. H. Fleming,
appellant,
L Statutes and rules of
practice pertaining to district
courts in this state apply to pro-
ceedings in county courts with
increased jurisdiction, under
section 8289, X. C.. 1905.
Z. A term of court within
section 9791, r. G.. 1905, means
a term Of court actually held,
and not one that may be held;
and a criminal action should
not be dismissed for failure to
file an information at a term of
court at which defendant can
not be regularly tried by a jury.
3. 1t is not an error to refuse
to dismiss criminal action by
reason of failure to arraign a
defendant under section 9871,
K. G.. 1905, where the arraign-
ment is not made at the next
term of the court after the in
formation is filed, as that sec
ton does not prescribe that the
arraignment must be made at
said term.
4. Under chapter 68 laws of
1907, pertaining to calling
juries in county courts with in
creased jurisdiction, jury is
not necessarily to be summon
ed unless there is a criminal
case awaiting trial. and a
case is not awaiting trial.
where the return of the justice
on the preliminary examination
only is filed, and the defendant
is not in Jail but at large on
bail.
8. 1t is not error to refuse to
dismiss a prosecution under
1O3G7, r.. &. 1905, where the
next term of court mentioned
in that section is one at which
the defendant could not have
been regularly tried.
6. Section $500, r. G.. 1905,
is expressly applicable to the
dismissal of prosecutions in
county courts with increased
jurisdiction, for failure to
prosecute the action, in cases
where the defendants are not
confined in jail, but are only
under bonds to appear at the
county court.
7. Whether criminal action
should be dismissed where a
defendant is at liberty under
bond for his appearance hy
reason of failure to prosecute
the action as provided by
statute unless a trial is de-
manded, not decided.
8. 1t is not prejuducial mis-
conduct on the part Of a states
attorney to state, in reference
to an object by defendants at
torney to a question asked him
on his ross-examination at the
trial: Counsel was little
slow in coming to the assist
ance of the Witness" especial
ly in view of a prompt caution
from the court to the jury to
d1Sregard the remark.
9. The failure to instruct
the jury in express terms that
they are the sole judges of
questions of fact, if ever pre-
judicial error, is not SO where
the charge in substance so
states, and there is not request
for a specific instruction on
that point.
10. A person convicted Of
assault and battery and SEN
fenced to pay a fine and costs
which are taxed and not paid,
may be imprisoned as provided
by section 1O1O4, r. C. 1905, for
the non-payment of the costs
as we'll as the fine.
(Syllabus by the court.
Appeal from the county court
of Bottineau county, Kirk, j.
Defendant was convicted of
~ = 81 ia.l q