The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1925-05-07
THE BISMARCK TRIBUNE
Eli Bowles,
Defendant and Appellant.

Eli Bowles,
Defendant and Apps liant.
SYLLABUS:
In an action by the MORTGAGE
against the mortgagor for the con-
version Of the property described in
chattcl mortgage the mortgagor is
not cstopped by the covenants of
ownership and warranty from show
ing that the property which he is
charged with having converted never
existed and, that, hence, he could
not have converted it.
| Appeal from the District Court of
Pierce County, Buttz, J.
The defendant Eli Bowlcs appeals
from a judgment and from an order
denying his motion for judgment
notwithstanding the verdict or for a
new trial.
REVERSED AND REMANDED:
Opinion of the court by Christian
| son, Oh. j.
Campbell & Funkc, of Minot, n.
Oak, attorneys for appellant.
Harold 3. Nelson, of Rugby, N.
| OAK, attorney for respondent.
From Ramsey County
The State Of North Dakota,
Plaintiff and Respondent.
| Ben Gates,
Defendant and Appellant.
SYLLABUS:
/. In prosecution on the charge
of unlawfully possessing intoxicating
liquor the State must prove consci-
Gus possession beyond reasonable
doubt. From the finding Of intoxi-
eating liquor in room occupied by
the defendant, or in bag owned by
him in such room, it is held, for
reasons stated, that the jury may in
fer possession.
2. For reasons stated in the opin-
ion, it is held that there was suf-
ficicnt evidence to support finding
by the jury that Intoxicating liquor,
found upon certain premises, was un-
der the control and in the possession
of the defendant, in violation Of Sec.
/, Chapter 268, S. l.. 1928.
3. Specifications of error based
upon the ruling of the trial court in
admitting and excluding evidence, for
reasons stated, held without merit.
1. Whether leading questions
should be permitted is very largely
discretionary with the trial court,
and its rulings In that respect will
not be disturbed unless it is appar-
ent that the discretion was abused
to the prejudice of the defendant. For
an abuse of discretion to overrule
objections " certain questions al.
though leading in form.
5. The charge to the jury must
be considered as whole. TheOre-
teal or technical error, or error
which for other reasons, is not cal
culated to lead the jury to return an
erroneous verdict, does not consti-
tute a ground for reversal. For rea-
sons stated, held that the charge, as
whole, was correct, although an iso-
lated portion thereof is technically
erroneous.
6. 1t is not error to instruct the
| july "AtuouG ACquSSs, III SHC AoA~
guage of Sec. 10837, c. L. 1918, to the
effect that the defendant has right
to remain off the witness stand, and
that no adverse inference shall be
drawn by the jury from his failure
to testify. The rule on this point
in State VS.. Wisnewski, 13 NJ. D. GAO,
lO2 N. W. 305. Ann. Cas-. 907 re-
examined and adhered to.
Appeal from the District Court of
Ramsey County, Hon. c. w. Buttz,
Judge. Defendant appeals from an
order denying motion for new trial.
Opinion of the Court by Johnson, j..
AFFIRMED:
H. w. Swenson, States Attorney,
S. w. Thompson, Assistant States
Attorney, Devils Lake, North Dako-
ia, and Geo. F. Shafer, Attorney
General, Bismarck, North Dakota,
Attorneys for Respondent.
Cuthbert & Adamson, Devils Lake,
North Dakota, Attorneys for Appel
liant.