Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-05-07
another CHANGE FOR
DR.. Thor M0ELLER
SUPREME COURT GRANTS MlNOT
MAN ANOTHER CHANCE TO
PROVE lNNocENsE.
Decision Of the Court Was Not Un-
expected - Expected Trial Will Be
Started Very Soon.

|
! The decision of the court was no
unexpected, as the states attorney O
Ward county in an argument of tn
case, admitted that there had bee
reversible error in the admission O
certain testimony.
The error consisted in the admis
sion of certain testimony relating t.
admissions made by Dale as to Moe
Ter, but which were not in further
ance of the conspiracy alleged, an,
under the rules such testimony shout.
not have been admitted.
Moeller was convicted and sentenC
ed to ten years Imprisonment. TIL
new trial that has been granted will
probably be begun in the near futur,
as the states attorney is ready to pro
coed with it at the earliest possibl,
opportunity.
The syllabus of the decision is al
follows:
The State of North Dakota, respond
ent, vs.. Thor Moeller, appellant.
1. The principle upon which dec
larations of a co-conspirator not or
| trial are sometimes admissible in evi
dence against the cOnspirator who is
on trial, is that by the act of conspir
ing together the parties doing so have
assumed as body the attribute of in
dividuality as relates to the prosecu
ton of the common design or pur
pose, hence, what is done or said by
any one In furtherance of that design
is the act of all. Evidence of such
statements are also admissible on the
ground of agency.
z In the trial of a physician on
the charge of Internationally causing
the death of patient by inflicting
upon her mortal wound while at.
tempting to induce and procure mis-.
carriage, testimony of one p, was ad-
mitted relating to certain statements
made to him by one D., a third party
who 1t was claimed had entered into
conspiracy with the defendant to
commit the offense. Such statements,
regardless of whether a conspiracy
had been proven or not, were incom-
petent for the reason that they were
not made in the presence of the de-
PENDANT, related to acts previously
done or to be done in the future and
were not made in furtherance or in
prosecution of the common purpose.
3. An instruction to the grand jury
relating to the testimony of the wit
ness P, charging that if they found
a conspiracy between the person D,
and the defendant existed, statements
made or acts done by D., while either
he or the defendant contemplated the
formation of such a conspiracy after
wards carried into execution or at
tempted to be carried into execution
by such cOnspirators, or which were
so made or done while either or both
OF them were carrying or attempting
to carry into execution the plan and
procedure such unlawful Miscarriage
as the result of such conspiracy, might
be considered, is erroneous in that
it omits the necessary element that
such acts must have been done or
statements made in furtherance and;
of the object of the con-
spiracy.
4. Sustaining objections to cues.
lions which, If answered favorably to-
the party inquiring, would furnish only
evidence on subject re-
(atfng to which no conflict in evil
dence arises is not necessarily re-
versible error.
5. When defendant on cross ex-
has drawn from a witness
parts of conservation with a third:
party relating to given subject, the
plaintiff may properly require the wit
ness to testify as to the remaining
portions of the conversation on the
same subject.
6. Over defendants objection state
ments made by the witness P, not in
the presence of the defendant and not
in furtherance or prosecution of the
offense charged but merely reciting
acts that had been done or were in
were received in evil
dence. The contention by the state
that this did not constitute error be-
cause the nature of the questions were
such that they did not disclose to the
court whether the answers would be
or incompetent, and that
defendant should have moved to strike
out the answer, is met by the fact
that after some of the questions re-
ferred to had been propounded, it
must have been apparent to the court
that they related to Incompetent dec
larations.
Z. Certain other questions consid-
cred and passed upon.
Appeal from the district court of
Ward county, Goss, ].
From & Judgment of conviction of
murder and an order denying a new
trial, defendant appeals.
Reversed and new trial granted.
L. H. Palda, c. D. Aaker and Enge-
rud, Holt and Frame, for appellant.
Andrew Miller, attorney general;
Dudley L. Nash, states attorney; Geo.
l.. Ryerson, assistant states attorney,
and E. r. Sinkler of counsel for the
state.
Opinion of the court by Spalding,
j., all concurring.
GOOD SUGGESTION.
We wish to call the ladies' atten.
ton to the NORTH STAR LUMBER
~kA T. i