Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-03-23
Supreme Court


In the Supreme Court, State Of
North Dakota.
State of North Dakota, Respondent,
VS.. James j. Reilly Appellant.
/. Information Examined and Held,
10 sufficiently state the 0ffense o.
murder in the second degree, under
Sections S789, S79G and 1912, Revised
Codes, accomplished by the uninten-
tional killing Of a human being while
engaged in thet procurement of a mis-
carriage, which Was not necessary. to-
save the life of the deceased.
2. A trial judge has no right to
arbitrarily discharge a regular jury
panel without cause and summon an
other for the trial Of a particular
case. He may, however, for reasons
which, in the exercise of his discre-
ton, he deems sufficient, excuse jur-
ors who have been summoned, al
though such action may necessitate
the resort to talesnen Or the sum-
moning of an lditional jury, and even
though his reasons therefor are not
such as would constitute a legal
ground for the disqualification or eX-
emption OF such jurors.
3. Where a panel has been proper
ly been summoned, but only a portion
thereof appears at the trial, it is not
necessary for the court to, delay the
i%mpaneling OF such jury or to postpone
the trial, nor is it necessary for him
to summon other jurors or to issue
attachments for the absent jurors be-
fore proceeding with the impaneling
Of those who have appeared.
4. An objection that a question is
incompetent, irrelevant. and imma-
terial, no foundation laid and an in
proper question-improper to ask for
the opinion of a DOCTOR" does II
sufficiently raise ali objection that
some of the witnesses on whose tes-
timony the hypothetical question is
based gave their own opinions in addi-
ton to reciting the facts Of their OBJ
servation.
). The question: Doctor, when
another physician is called in a seri.
GUS case. what is the custom of the
first physician, what does he usually
do? Tell him everything he knows
about the case?' is not vulnerable to
the objection that it is incompetent, ir-
relevant and imMaterial, no founda-
ton laid, and not in any way binding
upon the defendant. If there is a gen.
eral usage applicable to a particular
profession or business, parties who
engage an individual in that profess
sion are supposed to deal with him &C
cording to the usage, and the fact that
there may be a local usage which is
different from the general custom is
not suggested by the objection.
6. Where a witness is allowed to
testify fully. on cross-eXaminaticn TO-
the fact as to Whether a particular
wound upon the uterus could have
been inflicted by the deceased, her.
self, it is not error to sustain an OBJ
lection to a further question PROFOUND
ed upon such cross-examination as to
whether it is not a fact within medi-
cal knowledge that intentional abor-
tons are often performed by the use
of needles, knitting needles, lead pen
ellis, or other instruments.
Z. Where matters are not in dis.
rute and are repeatedly testified to
and fully conceded by the witnesses
for the state, it is not necessarily re-
versible error in a criminal case to eX-
clude questions which are merely Gu
.mulative and in atiirmance of that
which the states witnesses freely ad-
NIT.
s. The extent of .cross-examination
is within the sound discretion of the
court.
s. 1t is not necessary that a person
should be a graduate of a medical
college or duly licensed to practice, in
order that he may give testimony as
an expert medical witness, where the
witness testified that he was a physi-
clan and surgeon, had practiced for
eighteen years and treated all kinds
Of ailments, s~icknesses and performed
surgical work, as his qualification to-
so testify was sufficiently proved.
10. Various instructions Examined,
and, although not approved, Held, Not
to be prejudicial or to constitute re-
versible error.
II. An instruction to the effect
that IF any witness has been shown
to have wilfully and knowingly testi-
fled falsely in regard to some material
matter, you are at liberty to disregard
his testimony entirely, unless corrob-
Grated by credible testimony Held,
10 be a sufficiently definite statement
of the law upon the subject.
II. The trial judge said: "The
court at this time will submit to the
jury a written charge, but owing to
the fact that there is but one counsel
for the defense, and that his time has
been thoroughly taken UP during the
progress of the trial SO that, he has
not had proper and sufficient time. to