The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-01-02
From TOwner County.

parLS, the IlrSt OIL winch Is tnc ueatIl
Of, the person alleged to have been
killed, and the second, that such death
was caused through criminal agency.
2. Section 9459, Compiled Laws Of
1913, which provides that no person
can be convicted Of murder Of man.
slaughter unless the death Of the per-
son alleged to have been killed and
the fact OF the killing are each estab-
lished as independent facts; the for
mer by direct proof and the latter be-
yond a reasonable doubt; construed
and held that the legislature used the
words direct proof" in the popular
sense as the equivalent of direct evil
dence." Held, also, that direct proof
OF the finding Of the dead body OF
such infant satisfied the statute and
that circumstantial or opinion evil
dence of medical experts as to the
fact that the child was born alive and
the manner Of its death was admissi-
BILE to prove the second component
part of the corpus deficit, viz; that
the infant came to its death through
criminal agency
3. In homicide case, evidence ex-
amined and held sufficient to estab-
lish the corpus deficit
4. In q homicide case, evidence ex-
amined and held sufficient to estab-
lish the corpus deficit.
4. In q homicide case, evidence ex-
amined and held sufficient to warrant
the convictions OF the defendants.
p 5. Certain hypothetical questions
prepounded to medical expert call
ing for his opinion as to whether the
infant alleged to have been killed was
born alive, held improper in form for
reasons stated. Held further, that the
ruling sustaining such questions was
nonprejudicial for reasons stated.
s. Where the facts are cOntrOverted
the questions popounded" to expert
witnesses should be alphabetically
framed so as to assume the truth
OF the facts therein stated, but at the
same time leaving with the jury the
determination Of the truth thereof.
2. Ina homicide case, in which the
defendants are charged with killing
new born infant, certain confessions
or admissions of the alleged mother OF
the child made to the states attorney,
held inadmissible under section 9549,
Compiled Laws. prescribing that con-
LESSONS or admissions are inadmissi
bic to establish the death Of the per-
son alleged to have been killed.
s. In a homicide case, the following
instructions was given: "Circumstan-
tial evidence alone Is enough to sup
port the verdict Of guilty of any crime,
providing the jury believe beyond
reasonable doubt that the accused is
guilty under the evidence. No greater
degree of certainty in proof is re-
quired where the. evidence is all cir
cumstantial than where it is direct,
for in either case the jury must be
convinced of the prisoners guilt be-
yond q reasonable doubt. The evil
dence of circumstances is to be taken
by you the same as evidence Of d.
rect and positive acts. 1t is to be re-
ceived by you in the light of reason
in the light Of actual results. All evil
dence is more or less circumstantial,
all statements Of witnesses, all con-
illusions of jurors, are the results of
inference. There is no ground of dis
between circumstantial and
direct evidence" Held, the giving of
suc! instruction constituted nreju-
Hicia! error for reasons stated in the
opinion.
9. In charging the jury, in a homi-
:ile case, the words "aiding or abett-
ing" were used in lieu of aiding and
Held, error, but not preju-
tlicial in the light of other explicit in
:.....,
10. The giving of an instruction
upon the subject of defendants flight,
although stated correctly as an alb
stract rule of law, held, not warranted
under the evidence.
IL. In homicide case, q ruling adj
hitting proof of a certain exclamation
made by third person held nom
prejudicial although such exclamation
was not admissible as part of the
Res Gestae nor as tending to show an
admission by defendants.
Appeal from district court, Towner
County, C. w. Butte, J.
Defendants were convicted of man
slaughter and from the judgment of
and from the order deny
ing a new trial, they appeal. sa-,:, /.
Reversed. Opinion Of the court by
Fisk, c. J. Burke, j., did not partici-
pate, Hon. j. NJ HanIey, Judge of
Twelfth Judicial District, sitting in
his stead. - -.
Torger Sinness and Clyde Duffy of
and Victor WARDROBE Of
Leeds, attorneys for. appellants.
T. H. Burke, states attorney, Of
for respondent.