Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-04-16

, custody SO that thereafter prosecl
trix could with safety institute thi
prosecution for rape against defend
ant. The testimony disclosed b,
reasonable Inference that the prose
cutriX may have been actuated b.
bad faith in instituting these proceed
ings, and full cross examination
should have been allowed OF tn,
states witness concerning such al
rest of the prosecutrix so caused IN
der alleged Encouragement with thu
witness testifying; and the exclusion
Of the cross examination offered was
error. .
60 The crime, if committed, was
done while the wife and other chill
dren of defendant were temperate,
absent on a visit. The state offered
testimony showing opportunity and
from which the inference might be
drawn that defendant had kept the
prosecutrix at home to prostitute
her; and such was the states theory
of why she did not leave with the
wife and other children, as it had
been previously arranged she should
do. The wife was permitted to testi.
From a judgment Of the district
court of Stutsman county, Coffey, j.,
defendant appeals.
REVERSED, Opinion by Goss, J.
Burke, j., (Dissenting.)
Andrew Miller, Attorney General,
| Geo. NJ. Mckenney, States Attorney
of Logan county, and Geo. w. Thorpe
and Russell Chase. of jamestown, Of
counsel for the state. .
w. S. Lauder, of Wahpeton, and
John ,Knauf, of jamestown, attorneys
for appellant.
In the Supreme Court, State Of North
Dakota, october Term, 1912.
Price Z. Morris, Plaintiff and Appel
liant, =
Minneapolis, st. Paul & Sault Ste.
Marie Railway CO... Defendant and
fly that she did not take p~rosecutrix
with her because "she was afraid to-
but was not permitted to relate the
specific reasons for her fears and rea-
oOIlS WHY lHC DlOoCSuIllA olu llOt ~
company her on the visit. Defendant
sought to show that the reason for
such fears was because of informa-
ton obtained shortly before, from
the prosecutrix and others. tending to
establish her immortality and I'M.
chastity generally and causing the
belief in the defendant and wife that
rrcrnn,,%,;y ,,,;u1,< Ioo1,rn ,provorpo.
bel and troublesome in such respect
if SO taken; which testimony was ex-
cluded. This evidence offered should
nave been received, and defendant
should also have been permitted to
testify to his explanation of how pros
ecutrix came to remain at home with
him.
CO. Upon cross examination de-
PENDANT was examined concerning
the death of his first wife, who had
died more than ten years before, and
from the matters SO brought out the
jury may have concluded that her
death may have been due in part to
his refusal to furnish her with a doc
tor during childbirth. This and such
other irrelevant testimony S o elected
during his cross examination may
have been prejudicial.
(Syllabus by the COurt.)
Respondent.
Plaintiff sues for barley alleged to
have been lost in transit from a car
load shipped from Bordulas, n. d.. to
Superior, Wisconsin. To make proof
Of loss evidence was offered that the
barley was weighed when taken in
to the elevator and again when load
ed therefrom into the car, with the
weights corresponding. The elevator
agent testifies that the elevator
scales balanced; that he loaded the
entire car as II transaction; that
he had been in charge of the eleva.
tor and similar work at that place for
two months prior to that time; that
he understood the scales and knew
how to use them; and that these
weights taken were correct and accu-
rate; that some twenty different
weighing operations were necessari.
ly made in loading the car; that the
total OF these weights and the amount
of the barley placed in the car was
G2,4aO pounds; that the car was then
Immediately sealed and taken charge
OF by the carrier. The evidence shows
that on the arrival of the car at SUI
pcrior the grain was weighed in bulk
and the state ~weighmaster's official
certificate Of weight of this barley
showed but 57,4S0 pounds as the
amount delivered by the carrier to
the consignee. For this difference
in weight, 1850 pounds of barley,
plaintiff seeks to Gov of the car
rier as for barley lost in transit. The
trial court directed a verdict dismiss
sing the action and plaintiff appeals.
HELD:
% Plaintiff must establish by a
fair preponderance Of the evidence
that a portion of the grain received
by the carrier was not delivered at
Superior.
c) That proof Of such shortage
may be made by evidence Of the
weight of the grain when delivered
to the carrier for transportation and
evidence of its weight at destination,
when the proof Of such weights is
reasonably certain and satisfactory.
(3) That under the evidence plain.
tiff has established a prima facie
0oco nf locc of mn yno;, T. |