Page:Dakota Territory Reports.djvu/23

Rh statutes of states, by their peculiar phraseology, make certain offenses felonies which were not so by the common law. In America, statutes define the distinction, and as it seems to us clear that the statute herein quoted does not make the offense alleged in the indictment a felony, the court properly refused to arrest the judgment.

II. For that the indictment contained two counts, and the jury returned a general verdict of guilty, the defendant below claimed that judgment should be arrested and he have a new trial. There is no principle in law better settled than that when an indictment contains more than one count, and one of them is good, and a general verdict has been rendered, the court will not arrest the judgment, but will proceed to sentence the defendant on a good count. American Crim. Law, 422, and cases there cited; 12 Vermont, State v. Davidson, 3OO, In the 22 Vermont, State v. Bugbee, 32, in a prosecution for selling spirituous liquor without a license, analagous to this, wherein there were more than one count and some of them bad, the court say: "The court in such case do not arrest the sentence, but proceed to sentence on the good counts alone." There is, however, no pretense in this caee but that both counts were good, saving the question herein decided as to the word felony; and it is, therefore, safe to conclude that the court committed no error in not arresting the judgment for this reason.

III. Was an Indian a competent witness in this case? No authorities have been presented to the court on either side in this regard, and, therefore, the argument on the side of the prosecution upon this point, has taken the ground that no distinction should be made in this Territory so far as color or race is concerned, and vice versa on the other. It seems to us that there should not be any distinction made so far as color or race is concerned, and it would indeed be very unwholesome for us, in this age of constitutional reform, when we are endeavoring to establish principles in consonance with the intelligence of the time in which we live to consider ourselves obliged in rigore juris to arrive at any other conclusion. Every person should have equal rights under the law. But referring to the 13 U. S. Statutes at Large, 351 and 533, and