Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-11-27

/ q - tAAS thot ~ was Ill ~
Couny Cour OF Ward couny, and the Ger
~tificate of the Clerk that it was filed in
the County Court of tina Couny. Held, that
he omission of the title OF the conr was
could not have mlslead or prejudiced
the defendant, and did not render the in-
formation had on demurrer. Ssa IT,
me 3. c dhs1 eenaaa oa 9 Il ,!n9 ese at} nsae By Ssf tse
States attorney for leave TO amend he
information by inserting the omitted word
county" was an abuse OF discretion.
(Syllabus by the Court).
Appeal from an order of the County
Court OF Ward county, sustaining a de-
murrer to a criminal information, Hon.
Wnl!1Mla vnR MH15ay X,S 1; RnMANDED. op,n.
ion Of the Court BY spalding. G. j.
r.. A. Nestos, States Attorney and
Dorr H. Carroll, Assistant States Ator-
ney, bob of Minot, N. D. for Appellant.
n TIE SUPREME sas4s eoys41, STATE
Mary G. Waterman, Respondent, vs.
liant.
l.. Plaintiff, while a passenger on de-
PENDANTS train on May 20, 1911, was in
seat against another seat owing to the
ac of ne rain crew in carelesslly shnnt.
ing another car against such train while
standing at a depot at Wishek. She
permane to h %iniar teeel Sat t Hery ex ssra4u fba ana
Of and whether the same will be perma.
nent rests largely upon he opinions of
medical experts. such opinions being much
is suffering from What in medical sc Science ice
Is known as traumatic neurosis, or rail.
way spine. According go the opinions Of
nearly all the experts such ailments are,
in most cases, durable.
p" The .c1nSa was tried ohn,,t five roontl,
AFTER the accident, resulting in q verdict
for $4,000 and interest, upon which judg-
ment for $26, 900 was thereafter entered.
subsequently a motion for a new trial
among others, of excessive damages ap-
bearing to have been given under the in.
t1uence of passion or prejudice. Sucn mo.
ton was denied upon condition that plain.
till within twenty days remit all sums
in excess of $4,000, which condition was
complied with and a new judgment en-.
tered for that amount.
HELD, that the verdict, in the light Of
the testimony, was clearly excessive and
shows passion or prejudice of the jury
and that it was the duty of the rial court,
under section 1868 r. c.. 1905, to grant
q new rial Internationally, and his re-
2. Section 1868 construed and held, not
to authorize a remittitur in lieu of a new
trial in cases involving unliquidated dam
e where. as in this case, the damages
SSooS q z ~ 6lOSoly cACcSSlVc as 10
Enthusiastically show thai the jury must
have been actuated by either passion or
prejudice. In such a case the defendant
is. entitled to a new trial.
upon alleged insufficiency of the evience
to Justify a recovery, and upon certain
rulings on objections to testimony, exam.
med, and held without merit.
(Syllabus by the Court),
Appeal from District Court, Logan
County; J. A. ,Coffey, ].
From a judgment in plaintiffs favor,
and from an order denying a new trial,
defendant appeals.
Reversed ard a new trial ordered, Opin.
ion Of the Court by Fisk, !.
John L. Erdall, Minneapolis, MINI,
Geo. M: McKenna. Napoleon, SD, anu
Appellant lAlfred ii. Bright, Minneapoiis.
Mimi, Of Counsel.)
8 Lauder; @Wahpeton; : NJ D!s,s Tor RES
pondent.
STATE OF NORTH DAKOTA IN 81.
PREME coURT.
State of North Dakota, Plaintiff and
Respondent, VS.. Nettie Riley, Defendant
and Appellant. +
/. A criminal complaint charging an
offence rs having been committed con.
tinuously since the 1st day of January,
tween that date and the 9th day Of June
1911 and an information, charging the
defendant with having committed an
o3ffense Of the same nature. from day to
day continuously, from the LIST dag Of
January, 1911, to the commencement OF
this action, which action was commenced
by the filing Of the information, during
a regular session OF the district court, and
on the. 18th day Of September, 1911. charge
2. An information charging a defend.
ant with keeping and maintaining a com.
mon nuisance cotiuously from day to day,
from the LIST day of January, 1911. to
the 9TH day OF September, 1911, and filed
In district court during a regular session
of such court, on the 7th day of Septem.
ber.. will support a conviction without a
preliminary examination having been held.
8. A criminal information. which states
that, on the 9th day Of June, 1911, and
continuously from day to day, from the
LIST day of January, 1911 to the commence
ment of this action, the defendant dlu com
nit the crime. of keeping and. maintaining
a common nuisance, does not charge two
separate and distinct offences. The allie.
cation as to the 9th day Of June, which
Is a day included within the extreme dates
Is surplusage.
4. A defendant charged with a criminal
offence filed an affidavit Of prejudice dur
Il regular term of the district court,
wherein she was arraigned, against the
presiding judge of the district, and dc.
manded that a judge of anot-.e r district
be. requested to preside> a the trial. The
presiding judge secured the attendance
Of the judge Of another district within
five days from the date of the filing of
such affidavit of prejudice, and the pro.
ceedings against the defendant were then
BY the nonresident judge. Held
he la jurisdiction to try the de-
for tn e%offence charged.
5. On the filing of an affidavit of pre-.
JUDGE against the resident Judge Of the
district, he Immediately secured the at
of he judge of another district.
who presided at the trial of the defenant
charged with the commission of a Grim.
inal %offense TIL ERIN during which the
affidavit was filed, and at which the trial
place, commenced in accordance with
statute on the first Tuesday In February,
and court continued in session Until
the 21st day Of February. 1918. While the
was being tried. the resident
Judge conducted a trial in another county
Of the same district, pursuant to an adj.
1ournment OF the regular term of such
which commenced as fixed nv
law on he first Tuesday in January. 1917.
without passing upon the validity Of pro.
ceedings in the latter district) it is held
hat the frs named cour had jurisdiction
to ~ ne defendant, Notwithstanding the
OF the resident Judge Of the dis
TIC, ana MS being engaged in the trial
OF an action in another county in fine
anne district. ~
9: Sentence was pronounced upon tho
in a criminal action the next
0ay after the sreturn.of a verdict Of a1lilfv
Hello, nat In the absence Of any show.
IN the record on appeaEgthat the indpe
d1d not intend to or; didznof adjourn court
WITHIN Wo days, and no oHjecionihaNa6sO n
me luogment being neutrality-suspicious.
ed, having been made in the trial 8 7on
j VIII be presumed in support Of
nH6 nm 0~k ~ ~ III 49,