Lead Opinion
The defendant, together with one Thomas McKenzie, was charged in the information with'the crime of burglary, committed at Hunter, in Cass County, on the 15th day of November, 1896, and was found guilty, and sentenced for such offense. A motion for a new trial based on a statement of the case was overruled, and the record embracing the evidence and proceedings at the trial is now before this court for review. We find numerous assignments of error in the record, all of which have been considered by the court; but we deem it necessary, in disposing of the case, to discuss only such of the assignments as are hereafter mentioned. The evidence is not disputed that a burglary was committed on the night of the 15th or morning of the 16th day of November, 1896, at Hunter, N. D., in the Great Northern depot building. An entry was made in the building either by raising the window sash, over which there was or had been a nail, or through the door, which was locked the night of the burglary, but was not broken. A safe in the depot was blown open with gunpowder, and money and other property within the safe was taken. McKenzie, who was accused by the information as a co-defendant, on a plea of guilty, was convicted of the offense, and is serving a term in the state’s prison. One James Ream, who was also informed against for the same offense, testified in behalf of the state, and his testimony is to the effect that McKenzie, the defendant, and himself were in the vicinity of Hunter for several days immediately prior to the night of the burglary, and that all three were in Hunter on that night, and left the locality before daylight on the morning of the 16th of November, and that all three reached Moorhead on the night of November 17, 1896. Ream testifies also that at the time of the actual commission of the burglary he was not present, but that, soon after,
Another feature of the case may become important in the event of another trial, It appears that the defendant was arrested
Dissenting Opinion
(dissenting). I am unable to concur with my associates in this case. The rule of evidence upon which the opinion of the majority is based is elementary, but I do not think this case comes within the rule; in other words, I do not think the matters drawn out on cross-examination of the defendant when on the stand as a witness for himself were collateral. I will state my reasons briefly. Defendant rested his defense entirely upon alibi. On the stand he denied his guilt, denied being present at the scene of the crime, and claimed that he had been elsewhere, to-wit, at Fargo and Moorhead, for two days prior to the time of the commission of the crime. To fortify this claim, and make it appear reasonable to the jury, he proceeded to relate in detail where he had been, and what he had done during those two days and nights, and he testified to staying over night at certain hotels, procuring meals at certain restaurants, getting drinks at saloons, and getting shaved by a barber. All this was on his direct examination. True, he did not in so many words testify that he paid for these things, but such entertainment can, ordinarily, be obtained only by payment, and there is no possible doubt that he intended the jury to understand that he did pay for them, just as other witnesses for him had testified. Now, it seems very clear that it would discredit his alibi to show that he was without means to pay for all this entertainment to which he testified. I think it too plain for argument that the state had the right at that stage of the case, and in rebuttal of defendant’s examination in chief, to show that he had no money. The state could do this by cross-examination, and, if the defendant answered falsely as to such matter, it was the right of the state, if it could, to contradict such false answers by its own witnesses in rebuttal. In my judgment, the state did nothing more. Defendant, on his cross-examination, promptly said that he paid his hotel bill the first night; that he had eight or ten dollars that he earned at a particular time and place; and, in substance, said that he had no other money. To that extent the state succeeded in showing on cross-examination that he had no money. If, then,