Bismarck daily tribune., 1912-05-15
Supreme Court

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In the Supreme Court, State of
North Dakota, April, 1912, Term.
State of North Dakota, Respondent,
vs.. E. C. Tolley, Appellant
/. An information for criminal
libel charging that defendant did will
fully, feloniously, maliciously and
knowingly, a"d with malicious intent
to injure one O., w1ite print and pub
lish and cause to be written, printed
and published of and concerning him,
the said O., certain malicious false
and defamatory libel, etc., examined
and held not vulnerable to attack,
either upon the ground that the eact
charged as an offense is not clearly
and distinctly set forth in ordinary
and concise language, and in such
a manner as to enable a person OF
common understanding to know what
is intended or what is charged, or
that more thai one offense is charged
in such information.
2 Where a statute mentions sew
eral things disjunctively as constl-
tuting one and the same offense, all
punishable alike, the whole may be
charged conjunctively in single
count as constituting single offense.
3 The order of proof, as we'll as
the scope of the cross-examination OF
witnesses are, and of necessity must
be, largely committed to the sound
discretion of the trial court.
Held, that the rulings of the court
below restricting the cross-examina-
tion OF the complaining witnesses
were. in the light of the record, noD
prejudicial.
4. Defendants contention that the
trial court abused it's discretion in
limiting the direct examination and
permitting unlimited cross examina-
ton of himself as witness, is held
without substantial merit.
5. Certain alleged rulings in the
admission and exclusion Of testimony
examined and held correct.
G. During the cross-examination of
defendant he was asked to state
whether as a fact certain deposit
had been made to his credit in GER
tain bank He evaded the question
by giving several answers which were
not responsive, such as II have never
been able to find it." Il will swear
that looked faithfully and made
search for it and never found it." etc.
And again he testified, 1T has not
been deposited to my knowledge to
this day" and "the books don't show
it." Whereupon tie states attorney
stated, II am not talking about what
the books snow" whereupon the trial
court made the following remark: II
think he has answered it both ways.
Never mind answer the question"
Held that such remark was non-pre-
judicial as the court clearly thereby
meant that he had answered both that
no such deposit had been made and
that the books did not disclose such
a deposit. No criticism that the de-
fendant had testified falsely, either in
one instance or the other, was made
or intended.
Z. The assignment Of error predi-
Gated upon the giving of certain in
structions and the refusal to give
others requested by defendant, as well
as those predicated upon the failure to
instruct on certain essential subjects,
held without merit. We find nothing
in the Instructions, when considered
as whole, prejudicial TO the rights
of defendant.
8. Under the provisions of the Re-
vised Codes section 1O157, it is made
the duty of this court on appeals in
criminal cases, to give judgment with
out regard to technical errors which
do not affect the substantial rights
of the parties From a consideration
of the entire record, which is very
voluminous, We are unable to discover
any error affecting the substantial
rights of appellant. Applying the
above legislative mandate the judg-
ment of conviction is affirmed.
9. Evidence examined as to its
suficiency to sustain the conviction
and held amply sufficient.
10 Section 9 Of the Constitution Of
North Dakota which provides that in
all civil criminal trials for libels "the
jury shall have the same power Of
giving general verdict as in other
cases; and in all indictments or in
formations for libels the jury shall
have the right to determine the law
and the facts under the direction of
the court as in other cases." is con-
strued and held not to make the jur-
ors the judges of the law. The jury
must accept the law from the court
and apply such law to the facts. Such
constitutional mandate merely vests
in the jury in such cases the right to
render a general verdict. They are
given the right to determine the law
merely in the same manner that they
do in other cases where a general
verdict is returned and the Judge Is
without power to require special
verdict in such cases. Section 9991
r. C. must receive the same construc-
ton. Section 10O42, r. C. goes a step
further by depriving the jury of the
power to return a special verdict in