Page:North Dakota Reports (vol. 2).pdf/541

 intended to persist in their purpose of robbing Mr. Curfman. Two insurmountable objections to that position suggest themselves: First, the question was not submitted to the jury. They were not told that, if they found the shooting was done to facilitate the escape of the assailants, it would be their duty to return a verdict of not guilty. The instructions were silent upon that point, and, in the absence of all restraint in that direction, under the facts stated, a verdict of guilty was virtually a foregone result. Again, if the jury had been so instructed, a conviction would not stand. There is nothing in the evidence to show that at the instant the shot was fired the assailants had any intent whatever to persist in their purpose to rob Mr. Curfman. Rather, the whole evidence shows that all intent to commit robbery had been abandoned, and the assailants were bent solely upon making their escape from the parties whose approach was heard, and from the consequences of their acts. It is possible the other intent may have been present, but no man should be convicted when the pivotal fact upon which guilt depends is a mere matter of conjecture. For this error the judgment must be reversed, aud a new trial awarded.

But another ruling is assigned as error, which may arise upon another trial, and hence it becomes proper for us to notice it. The state introduced as a witness one Fiest, who, against the objection of plaintiff in error, was permitted to testify that on the evening of the alleged assault, and only a very short time before the occurrence, he saw plaintiff in error and said Howard on the same street and but a short distance from the place where the assault was made upon Mr. Curfman; that Howard pushed a revolver in his (witness’) face, and ordered him to get off the street. It is claimed that the state ought not to have been allowed to prove a distinct and collateral offense. It is often difficult to distinguish the effect of prejudice from the effect of proof. When a prisoner is on trial charged with a special offense, the proof of a commission by him of a distinctively collateral offense, or of any number of collateral offenses, whatever be their character, is, as a general rule, no proof whatever of the commission of the offense charged. Yet such proof would produce most damaging prejudice in the minds of