The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-07-01
Decisions Of the Supreme Court


which he supposed he had applied
for. In plaintiffs replies to such LETT
ters he attempted to refuts h state
ments and arguments of defendant
Held, that parts of these letters were
competent at least for certain pur-
poses, and IL they contained incom-
petent matter II should have been
specified in the objection TO their re-
ceipt; and the objection made having
failed to do so the whole of such let
ters was properly received in evidences
Held, as to the remainder OF such let
tiers that they were called forth by
the statements and arguments con-
tanned in the letters written by de-
PENDANT, and for this reason and those
before stated were properly received
in evidence.
4. Proof Of the value OF the notes
in question was not made as OF the
exact date of the conversion. Held,
that the rule heretofore established
by this court regarding the market
value of grain, relied on by defendant,
is not applicable, as the value Of grain
1~uctuates almost daily while that OF
promisory notes is presumed, in the
absence of evidence to the contrary,
to be their face value.
8. The court admitted testimony on
behalf of plaintiff of the understand
ing of a witness, while similar testi-
mony offered as to the understanding
of a witness for defendant was strick-
en- out. These rulings were inconsis-
tent, and one of them doubtless err
roneous, but from the whole record
the court cannot say that 1t was peri
udicially so.
(SylIabus by the COURT.
-A HA-- 49, ltHN@snA rNRHnN IF
Griggs county; Goss, ].
Affirmed.
w. c. Resser, Fargo, N. D., for
plaintiff and respondent.
Ball, Watson, Young e. Lawrence,
Fargo, N. D.. for defendant and APP
pellant.
Opinion by spalding, G. J.
Goss, J. being disqualified did not
participate.
state of North Dakota, plaintiff and
respondent, VS.. Thor Moeller, defend
ant and appellant.
1. Upon a former trial Of this
action in the district court n DR.,
e. was a witness for the state. He
was asked several questions upon
cross examination to which objections
were sustained by the trial court,
which rulings were reversed by this
court upon a former appeal. At the
present trial below the said DR.. =.
was outside of the jurisdiction of the
trial court and his testimony was
given by the official reporter of the
former trial from his shorthand notes,
Appellant contends that this testimony
was improperly admitted because he
had no opportunity to cross-examine
the witness upon the former trial.
However, the statement of the case
shows that the same questions were
asked the doctor upon the former trial
and that he answered the same with
out objection. The statement Of the
case upon the former appeal being
much abbreviated, and inaccurate did
not show the true facts and mislead
this court at that time. Under the
facts now shown 1T is held that de-
PENDANT had a full opportunity to
cross examine the witness upon the
former trial and that his objection to
the testimony upon the second triaI
upon that ground was properly over
ruled.
2. Where one Dale was an accom-.
plice with defendant in the commits
sion Of the offense, and whether hiI
acts as such in furtherance Of the
common object tended to show thu
guilt of the defendant were facts fol
the jury to determine, and the testi'
mony offered at the trial of acts done
by Dale in ~furtherance Of such com
mon purpose towards the commission
Of the offense were properly admitted
and the instructions of the trial cour'
were full. fair and accurate.
8. DR.. w, sworn as an expert, wal
asked two hypothetical questions bas'
ed upon the testimony Of all of the
states witnesses, including that Of DR.
E., and calling for his opinion as tt
the cause of death. Held that the
questions were proper, the testimony
Of DR.. E.. being properly admitted ir
paragraph one.
4. The assistant states attorney
during his remarks to the jury in sum-
ming up the case referred to the de.
PENDANT as a professional abortion
ist," "a moloch who kills unborn chill
dren for the almighty dollar" etc.
but the defendants attorneys "did not
care to interrupt the argument" anc
did not give the trial court any OPP
portunity to stop the language or re-
Duke counsel, but made the objection
after the argument had ceased. Held
following State VS.. Knudtson, 21 N. d
1872 N. W. 149, that this court will moi
reverse the trial court for objectiona
language of counsel not called to hiI
attention by timely objection.
(Syllabus by the court)
Appeal from the district court
Ward county. Leighton, ].
Affirmed.
Palda, Aaker & Green of Minot, N
d. for appellant.
D. L. Nash, states attorney, for re-
~spondent.
Opinion by Burke, ]. Goss, j., being
disqualified, did not participate, Hon
s. L. Nuchols, Judge Of the Twelfth
judicial district, sitting in his place
by request.