The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1926-04-02

opinion, IL is held that requested
instruction by defendcnt on circun,-
stantinl evidence was properly refus.
ed.
Appeal from the District Court Of
Barnes County, Hon. A. +. Cole,
Judge.
Kasimcr Schneider was convicted of
murder in the first degree: and he
appeals.
AFFIRMED.
/ Opinion Of the court by Englcrt,
Dntrict Judge.
Birdzeli and Johnson, ~, not par
ticipating; EnRlstt and Berry, Dis.
trict Judges. sitting in their stead.
Norton & kelych, Mandan, N. D.,
attorneys for defendant and appel
1art. e.
+. +. McCurdy, ststc's Attorney,
bismarck, N. -, and John +. Sullivan,
Mandan, N. D., Special Prosecutor,
attorneys for plaintiff and rcspon-
dent. III.
From Adams County
State Of North Dakota,
Plaintiff and Respondent.
VS..
Joseph Swift,
Defendant and Appellant.
/. In q prosecution for a homicide,
it appeared that the defendant pro-
v0ked~ the controversy in the first
instance. After d fistic encounter,
deceased picked up a plank, threw it
and hit accused, then withdrew and
entered q store, the defendant fol-
lowing and meeting the deceased at
the entrance to the store. Both were
armed with revolvers. The defendant
shot and killed deceased. The de-
PENDANT claimed that he returned to
the store to obtain his coat. Il is
held that, in view Of all the evidence,
the question of whether defendant
acted in self-dcfense is for the jury
to determine.
2. Instructions examined and
found applicable to the facts in the
case.
8. In prosecution for murder in
the first degree, the court properly
charged on the various degrees of
murder and manslaughter and on the
law of sclf-defense, and further
charged that, If defendant began the
quarrel with felonious intent to kill
deceased, or do him great bodily
harm, he cannot claim sclf-defense;
but did not instruct that, if he be-
gan the quarrel, intending to commit
q misdcmeanor, or battery only, and
in the progress of the fight was
compelled to take the life Of his adj
versary. in order to save his own,
he could be found guilty Of man
slaughter; it is held that the ver-
dict Of the jury, finding the defend
ant guilty Of the lowest degree Of
within the omitted
charge, made the error non-prejudi-
cial. J,
: 4. For reasons stated in the opin.
ion, it is held that no error was COM
mittcd in not defining certain words
and phrases used in the instructions.
s. It is not error to instruct the
jury that they have right to take
into account, should it become neces-
sary, in considering the evidence,
things Of common knowledge, such
rs the laws Of nature, the measure of
time, geographic divisions. ETC., as
though evidence had been offered es-
tablishing the same.
6. Objection to certain questions
and answers considered and held
non -prejudicial.
z. For reasons stated In the opin-
ion, no prejudicial error was conf
mitted in receiving photograph Of,
the premises in evidence, showing
where the shooting occurred.
8. To over-rule an objection to
leading and suggestive question u.s.
not reversible error, where it Is
merely resume of what the witness
had already testified to. /,
9. Failure to strike an answer
which is not pointed and somewhat
uncertain, is not error, where the