The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-05-14
Supreme Court
Decisions
From stutsman County.

State of North Dakota, plaintiff and
respondent VS.. John Mueller. defend
ant and appellant,
Syllabus:
l. The allowance of leading ques-
tions Is largely in the control of the
trial court and no prejudice can be
assumed where the testimony elected
is afterwards testified to by a witness
of the party complaining.
2. Where evidence of guilt of the
act of homicide is overwhelming and
practically admitted, and the real de-
Tense Is that of insanity, mere tech
meal or immaterial errors in relation
to the homicide will be disregaroed
3. Errors in tho exclusion of testi-
mony will not be considered where
the matters in dispute are afterwards
4. 1t is not error to exclude testi-
mony, which has been repeatedly Civ
en- even though the question is not
exactly in the same form as that
which has been before answered.
5. Where a person shoots several
others in succession and within the
space of less than an hour and Is tried
for the murder of the first one shot,
res gestae.
6. No error ls committed in asking
the question, Didn't you testify in
answer to the question l am reading
now, and make the following state
nnent when you were at the prelimin-
airy examination, etc." nor is ~1e p
any. merit in the contention that the
evidence on the preliminary examina-
ton mad been given through an inter
prefer and was not understood by the
stenographer who transcribed it, when
the question Is merely asked for, the
purpose Of laying the foundation for
impeachment.
Z. No reversible error was commit
TED, where medical expert was asked
whether family history of crime
would not generally result in a
descendant being in the penitentiary,
ana where the expert answered that
ed, and even though there was no
proof Of any such family history.
.. The ill-teeling and prejudice Of
a witness can always be shown on
ross-examination.
3. The mere refusal to allow a
hypothetical question will not consti-
tute reversible error, where later on
in the trial the utmost freedom of ex-
animation is allowed.
name of a witness who is called in
rebuttal should have been written
upon the information.
IL. Where a stenographer testified
as to what he heard upon a. prelimin-
airy trial and not as 10. the contents
or his notes, and there is no evidence
that he lid not understand the German
language, no error is committed in
allowing him to testify even though
the preliminary examination was given
through an Interpreter, and even
though the stenographer had not tes-
tined that he had correctly Transcribed
his notes.
10. 1t is not error to instruct a
jury that:
In order to constitute murder in
the hrst degree as charged in the in
wilful with malice aforethought, and
with generalization and deliberation.
There must have been a specific, de-
!l6erate, premeditated intention to
take life, unaccompanied by any cir
cumstances of mitigation. The gen
orally accepted meaning of the word
generalization is a prior determine
ton to do the act in question and
then determinatton to do it. but it is
not essential that this intention
period of time, before it was carried
out. If the determination is formed
deliberately and upon due reflection it
makes no difference how soon the
tatal resolve was carried into eXecu-
ton. An act is done WilfulIy when
3one Intentionally and on purpose.
Murder in the second degree differs
from murder in the first degre only in
the fact that as to the second degree
there is no generalization or delibera-
ton. Thus whore a person forms a
design to kill in the midst of a con-
dict and Immediately executes such
NSSAEu llS hllAlIlB is not preInSQiLateQ,
and Is therefore no higher offense than
murder in the second degree"
Prosecution for the crime Of murder.
Appeal from the district court of
Stutsman county; Hon. j. A. Coffsy,,
Judge.
Judgment for plaintiff
Defendant appeals.
Affirmed
Opinion of the court by Bruce, Oh. ].
Robinson, j., concurring.
John w. Carr, states attorney, and
Lewis Tellner, assistant states attor-
ney, jamestown, and William LANCER,
attorney general, attorneys for plain
tiff and respondent; Knauf & Knauf,
Jamestown, and John ,Carmody, Of
Fargo. attorneys for defendant and
appellant.
From Cass County.
The state of North Dakota, plaintiff
and appellant, VS.. w. D. Gillespie, de-
PENDANT and respondent.
Syllabus:
/. Chapter So, session laws of 1917,
which provides for the registration of
licensed architects, construed and held
not to ahridge the right OF a profes-
5ional architect to continue to prac-
fiCa his nrnPnSat0n