Page:Dakota Territory Reports.djvu/468

 (2 Grah. & Wat. New Trials, 699 and 700; Ogden v. Gibbons, 2 Southard's R., 518.)

The accused sometimes has just reasons to complain of oppressive ruling on the part of the Court, in this particular. But the Court will not fail to make proper amends by granting a new trial in every case where it appears that the prisoner has in this way been deprived of a fair opportunity to make his defense. (2 Grah. & Wat. New Trials, 700.)

The majority of the criminal laws will be best maintained and vindicated by giving to each offender a fair and reasonable time to make his defence, and not by forcing him into a trial with indecent haste, when his body and mind, from his unfortunate condition, cannot be supposed calculated to arrange and prepare his defence, either with judgment or discretion. (2 Grah. & Wat. New Trials, 703.)

(1st Greenleaf Ev., sec. 442 Roscoe's Crim. Ev., p. 103.) This man Hood was a soldier; his former testimony is fully corroborated by other evidence in the case. He was, at the hour of his giving testimony, under charges for felony; his captain had tampered with him, his explanation is forced and exhibits such natural characteristics as compel the State to accept his original testimony, after the cross-examination and the re-direct examination. The dramatic effect of his false correction carried the verdict. (Code of Criminal Procedure, § 354.

"Murder in the first degree, is a wilful, deliberate, and premeditated killing. We find that by the omission of the word 'deliberate,' no other word being used capable of conveying the same idea, the indictment fails to describe the crime of murder in the first degree. The indictment being thus defective, the defendant could not have been tried for murder in the first degree." (State vs. Boyle, 28 la., 525.)

"As already observed, it appears to be everywhere admitted now, that if this form of the allegation does not contain in some way this higher charge," (deliberately premeditated) "it is contrary to our constitutions, to convict a prisoner upon it, as for murder in the first degree, though a statute should so expressly direct." (2 Bishop Crim. Pro., 587, 598, 588, 689, 2d ed. § 587.)