Page:Dakota Territory Reports.djvu/467

 ''6. INSTRUCTIONS:''. It is the duty of the Judge to give full instructions covering the entire law of the case, as respects all the facts proved or clainned by the respective counsel to be proved; but if he omits anything, and is not asked to supply the defect, the party remaining silent cannot complain.

7. -: . An instruction in which the jury is charged that "in determining the question of doubt, you will act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs," held: erroneous. There must be in the mind of the juror an abiding conviction to a moral certainty of the truth of the charge. And that conviction must be such as would lead him to venture to act upon it, in matters of the highest concern and importance to his own interest.

On the 24th day of February, 1877, the defendant, Peter Bannigan, was indicted in the District Court of Burleigh Coun- ty for the crime of murder, in killing one John D. Massingale, alleged to have been committed " wilfully, feloniously, and with malice aforethought."

On this indictment the defendant was tried and a verdict of "guilty of murder as charged in the indictment" found by the jury. Motions in arrest of judgment and for a new trial were entered and overruled, and the defendant sentenced to death. Numerous exceptions were taken during the progress of the trial, which the defendant has, by his writ of error, brought to this court for review, and which are stated in the opinion.

Erwin & Griffin, for plaintiff in error.

"This Court has several times granted a new trial when, as it appeared to us, the defendants application to put off his trial should have been granted." (The People v. Vermilyea, 7 Cow., 385.) A new trial was granted where the Court below "thought the affidavit too loose in merely stating information and belief of the witness's removal."

In the case of Hooker v. Rogers, 6 Cow., 577, the witness was unable to attend, "and this we held sufficient cause for putting off the trial."

In the matter of refusing a continuance, "the inquiry always is, 'has injustice been done?' 'Has the party been injured?'"