Page:North Dakota Reports (vol. 1).pdf/74

 bold, brazen effrontery, for the purpose of screening another, or for the purpose of adding one more crime to the list of those he has committed.” We note here that it did not appear in the case that Brown had committed any “list of crimes,” or any crime save one. But the language last quoted made the question of Brown’s reformation depend upon his having shown evidence of “penitence, any signs of humiliation, any signs of obedience to law and order.” Certain it is that no such evidence of Brown’s reformation is contained in the record, and equally certain that no such evidence, if offered, would have been competent. The jury might well conclude, from this feature of the charge, that, in the absence of any of the required evidence of Brown’s reformation, they would be justified in concluding that Brown had not in fact reformed, and consequently was unworthy of belief. It followed in natural and logical sequence for the court to say, as it did say, in that immediate connection, that the jury “might consider whether Brown’s testimony is bold and brazen effrontery, for the purpose of screening another, or for the purpose of adding one more crime to the list of those he he has already committed.” We think that it would have been much more fair and impartial if the trial court had somewhere thrown into its remarks to the jury, by way of counterpoise, some suggestion or theory of Brown’s evidence which would have been consistent with its truthfulness. It strikes this court quite forcibly that it would have been only fair to the defendant if the district court had suggested, as an aid to the jury, a hypothetical question something like the following: Whether it was probable that a man in Brown’s position, standing upon the confines of the grave, and about to be ushered into the presence of a God whose commands he had ruthlessly broken, with no perceptible selfish interest to spur him to the deed, would be likely to publish to the world a false accusation of murder against himself, and then, to bolster such false accusation, commit the additional crime of perjury, by calling upon the name of his Creator and Final Judge to witness that his false charge of murder against himself was true. Such a view as that suggested above would, in the opinion of this court, not have been too far-fetched, and would have been a theory of Brown’s testimony, to say the least, as in-