The Fargo forum and daily republican., 1912-05-20
DECISION OF TIE
SUPREME COURT

In the Supreme Court, state Of North
Dakota, April Term, 1912. State of
North Dakota, respondent, vs.. Phinneas
Dodson, appellant.
!. Under Section 10000, r. G. 1905,
which provides that "A conviction can
not be had upon the testimony Of an
accomplice unless he is corroborated
by such other evidence as tends to
connect the defendant with the COM
mission Of the offense, and the cor
roboration is not sufficient IL it merely
shows the commission Of the offense
or the circumstances thereof" 1t is not
necessary that the corroborative evil
dence shall cover every material point
testified to, by the accomplice, or be
sufficient in itself to warrant the YER
dict of guilty. If the accomplice is by
such testimony corroborated as to
some material fact or facts tending to
connect the defendant with the COM
mission of the offense, the jury may
from that infer that he speaks the
truth as to all.
2. Under the facts of this case and
under Section 10000 Of the Revised
Codes Of 1905, which provides that 'In
the trial of criminal action or pro-
ceeding before any court or magistrate
of this state, whether prosecuted by
information, Indictment, complaint or
otherwise, the defendant shall at his
own request and not otherwise, be
deemed a competent witness, but his
neglect or refusal shall not raise any
presumption of guilt against him, nor
shall such neglect or refusal be'referred
to by any attorney prosecuting the
| case, or considered by the court or jury
before whom the trial takes place." it
was not error for the prosecuting at
torney in, his closing argument to ask
the question, why hasn't he (tl1e de-
fendant) witnesses here to prove where
he was on the night of March 8, 1911 q
nor was this made prejudicial error
by his subsequent explanation after an
objection made by defendants coun-
sci that Il am not talking about the
defendant, but am asking why he did
not put other witnesses on to show
where the defendant was on this
night"
3. Nor, after such remarks, was ii
error for the trial court to charge the
jury that no prejudice or presumption
of guilt should be INDUCED in by the
jury against the defendant on account
Of his failure to take the stand.
4. Section 10000 r. c. 1905 does
not prevent the court from calling at
tention to its provisions and to the
privilege of the defendant of refusing
to testify without prejudice to HIM
self, If, in the courts discretion and
opinion it seems that the jury may be
misled in regard to the matter provid-
ed that he makes it clear that nothing
prejudiciaI to the defendant may be
assumed from his faiIlfre to appear and
| testify, the purpose OF the rule being
to prevent the states attorney from
first calling attention to the matter and
commenting unfavorably thereon. Es-
| pecially is this the case where an un-
necessary objection on the part of de-
fendant's counsel has brought the mat
ter to the attention of the jury.
Syllabus by the court
Appeal from district court LaMoure
county, Coffey, Judge.
Defendant was convicted of crime Of
grand larceny, and appeals.
Affirmed.
| George P. Jones, LaMoure, N. D., at
| torney for plaintiff and respondent.
| Curtis & Curtis, Lisbon, N. D., and
Davis & Warren, LaMoure, ". D., at
| torneys for defendant and appellant.
| Opinion by Bruce, j.