Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-12-06
'BICKfORD Will Make
one LAST BATTLE
Continued rrc,a rage One.)

quiFy, therefore, logically arises a:
to whether such draft is embraced
4 within either count OF the informa
ton? And this suggests the thought
that inasmuch as concededly but One
offense may be charged in such in
formation, each count thereof must
| necessarily relate to the same otfense
i or criminal transaction, merely stat
| ing or alleging the same to have been
committed in different forms or me-
i'thods. Turning TO the information
we find that defendant is charged in
each count with having embezzled it.
ems aggregating the sum OF 6O,43S.-
II, and turning TO the evidence of the
state in chief we find proof of five
specific items consisting OF drafts
and checks aggregating that amount
to the cent, and for which sum de.
PENDANT, on January 3, 1911, held Ger.
tificates Of deposit issued by the
BoWbells bank, and it is strikingly
apparent that the check for $54.65
is. not included therein. Manifestly,
the same could not be included there
in for the obvious ~eason that there
is no pretension that such item was
embezzled by depositing or loaning
the same or the proceeds thereof to
the BoWbells bank, and the items as
charged in each count, as before stat.
ed, must be held to be the same, for
otherwise separate 0ffenses are al
legged. Therefore il cannot be cor
w on bra 10
the $54.65 item. This item was not
mentioned nor heard OF in the states
main case, nor until ne!r the close of
the trial, and on the cross-eXamina'
ton of the defendant on rebuttal
when the same was accdently dis
closed. It is stated in the majority
opinion that there is no merit in the
contention that the testi-
mony as to the fact that the $54.G5
item was not entered upon the books
was elected in rebnttal. 1t is said
''The order Of proof is largely within
the control Of the trial court and his
discretion must largely control. The
defendant admitted that he had re-
ceived the amount, and it is quite
cOnclusively shown that he received !
it in the course of a series of fraudn
lent transactions. On crOss-eXamina. i
ton he stated that he did not know
it had been accounted for
or not. At the end of the trial and
on rebuttal the witness Mrs. Mitchell, |
testified that the item had not been
credited to the state. The only OBJ
lection made to her testimony was
that the testimony was mot the best !
evidence, incompetent as such, ire
Ievent and immaterial' There was nc
objection made that such a question
was not proper on rebuttal and the
point here made does not seem to
have been specially raised on the
trial" The majority opinion then
states in conclusion that the allow
ance Of sjleh.t testimony Was within
the trial courts discretion, and also
that the objection was not sufficient
specific in form to raise the point.
This portion Of the opinion must have
been written on the assumption,
which / think is erroneous, that the
s54.C5 item is embraced in the in
for otherwise it CONT be
justified under any rule or decision
so far as my knowledge extends. II
have no quarrel with the abstract
propositions of law therein stated,1
but dc not think they apply in the
case at bar. 1t requires no argumentI
to show that a citizen ought not togbe
sent to the penitentiary for an offenses
which he has neither been charged
with nor convicted Of, except
through the failure of his counsel to
interpose technically proper Objec-.
tons. Even ccnceding his guilt of
such oflense, the interests of the
state do not demand his conviction:
in such a manner. Quite the con-
trary is true Courts will not ordin-
arily resort to technical rules in or
der to sustain a conviction, espec-
tally conviction of an cffense not
charged. Tho crucial and decisive
question on the point under consid-
Grafton, therefore, is as to whether
this item OF $54.65 is included as a.
portion Of the funds covered in the!
In answering this ques-
tionWe must, not overlook the fact
that In employing three separate
counts in the information the public
prosecutor did not and could not haxe'
intended to charge more than one Of
Tense CT criminal transaction, and