The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-13
DECISIONS OF The
SUPREME COURT

In the Supreme Court. State of
North Dakota.
State of North Dakota, Respondent.
VS.. Carl Schonberg. Appellant.
1. On a trial for larceny by defend
ant of certain feeder Stats and chains
belonging TO NJ. & Co. and attached
to a threshing machine separator, the
testimony Of the states witnesses dis
closed that on the morning such
property was stolen defendant was
met upon the public highway neal the
place where the NJ. q Co. separator
was located, having in his possession
b Dundle OF Stats with chains attach
cd. The theory of the defense was
mat defendant procured the Stats and
chains which were in his possession
from an old separator belonging TO
II. q F. by permission of H. g. r., and
mat they were not the property OF
M. & Co. At the trial M, q witness
for the state. was asked on cross-ex~
animation whether the feeder on his
machine could be operated without
having the Stats so close to each
other. An objection was sustained to
this question on the ground of i'm
materiality and not proper -ex-
animation. Held, That such ruling
was correct.
2. A question asked for the purpose
or laying a foundation for i~mpeaching
Trajectory testimony given by him at
the preliminary examination, was
properly excluded, 1t appearing that
such question related to n subject
matter in on way germane TO the
testimony given by the witness at the
trial.
3. Defendant sought to introduce in
evidence a box Of feeder stats which
had been removed from his machine
Tor the purpose Of showing that they
rad TO be cut off at the ends in order
to At his machine. This testimonv
was properly excluded as 1t had no
material bearing upon the Issue as TO
guilt or innocence. Nor
was there any proper foundation laid
Tor the admission of such testimony
as there was no showing that such
Stats were the ones which It was
claimed had been stolen from the Nc
Kay machine.
T. Defendants brother was asked to
narrate a conversation had with de-
PENDANT on the evening prior to the
larceny. presumably for the rpo
OF showing that the defendant ex-
pressed to him his intention Of going
10 Rolla to procure Stats from the III.
d F. feeder. Such testimony was
properly excluded on the ground that
II amounted to merely ~self-servfnE
declarations n hearsay statements
or the defendant. Any expressed in
tent by the defendant to his brother
OF his purpose that night was both
incompetent and immaterial.
3. Certain other rulings excluding
testimony offered by the defendant
examined and Held. Non -pretudIciaL.
3. The court instructed the Jury up
on the question Of the weight TO be-
given the proof as to defendants re-
cent possession of the stolen property
as follows: "If recently stolen prop
erty IS found In the possession Of the
defendant within a short time after
the commission of the crime of lar
ceny, such finding is affirmative proof.
under the law, that the defendant
stole the property unless the defend
ant has explained to the fury how he
came In possession of the property SO
as to lead the jury to a reasonable
doubt as to whether he is guilty or
guilty" The giving Of such in
struction was prejudiciaI error as Il,
In effect, told the jury that they should
treat such circumstance as an estab-
Lshed TACT showing guilt unless eX-
planned by defendant in a manner CON
sistent with his innocence. The Jury
should have been instructed that the
possession OF stolen property, recently
after the larceny thereof, when unex-
plathed, may be sufficient to warrant
the jury in inferring the guilt Of the
party in whose possession il is found,
and whether such inference should or
should not be drawn is a fact ex-
cluslvely for the jury.
Z. The court also instructed the Jury
IN effect that they should, in deciding
the case. ignore the arguments OF
counsel. Held, following the rule an
nounced by this cour I'm Zilke VS..
Johnson, 1872 N. w. $40, the the Civ
ing of such instruction was pre-
judicial.
Appeal from district court, Rolette
county, Cowan, J.. q
Defendant was convicted OF the
crime of petit larceny and from the
Judgment he appeals. Reversed and
remanded. Opinion by Fisk, ].
VIM. Bateson, Rolla, for appellant.
D. J. McLennan, states attorney,
Roiia, and Frederick T. Cuthbert,
Devils Lake, for respondent.
Notice Of Annual Meeting.