Page:North Dakota Reports (vol. 2).pdf/536

 found “full of sound and fury, signifying nothing.” I could add nothing to what has been said in the dissenting opinions in those cases, with such power of reasoning. Nor do I regard this as the court in which to express a dissent as to the doctrine. Such dissents are proper in. that court which ought to declare the rule on this subject for the whole nation, in all its courts, state and national. No question of the reasonableness of the statutory compensation is involved. The issue is purely one of power. No other point is before us on this record. Yielding my individual judgment to higher authority to which I feel it my duty to submit, I agree to the affirmance of the judgment.

State or North Dakota, Defendant in Error v. Edward Fatton, Plaintiff in Error.

Criminal Law—Proof of Collateral Offense—Variance.

1. Where an information charges the defendant with the orime of an assault with a dangerous weapon, to-wit, a pistol, with intent to commit a felony, and describes the assault as committed by then and there shooting a loaded pistol at and against the party assaulted, with intent to rob him, and the evidence shows that the assault was com- mitted by thrusting the pistol in the face of the party assaulted, and demanding his money, and that the pistol was not discharged until after the assailant had started to make his escape, there is a fatal variance between the allegations and the proof.

2. In such a case the jury may not, in the absence of any evidence to support it, indulge the presumption that at the instant the pistol was fired the defendant conceived the intent to return, and persist in the attempt to commit robbery.

3. When a prisoner is on trial charged with a specific offense, it is not error to admit proof of a collateral offense committed by the prisoner, when such collateral offense is connected with the specific offense in such manner that proof of the commission of the collateral offense has a legal and logical tendency to establish some fact necessary to be established in proving the specific offense.

(Opinion Filed May 18, 1892.)