Page:North Dakota Reports (vol. 3).pdf/194

 loose rein to conjecture,” would, in our opinion, be very dangerous in a criminal case. We find no precedent to justify such a mode of spelling out the meaning of ambiguous language in a verdict in order to sustain a conviction for felony. A verdict of guilty for an offense not charged in terms is allowable, as has already been shown, in certain cases, but such verdicts, to be legal, must embody all the essential elements of the crime not charged in terms, but which is “included” in the commission of the offense charged. The offense of assault and battery was charged and found by the jury, and the verdict warrants a conviction for that offense only. The judgment of the District Court must be modified, and that court will be directed to sentence the plaintiff in error for the crime of assault and battery only. All concur.

(54 N. W. Rep. 547.)

vs. .

Opinion filed March 1st, 1893.

Usury—Repeal of Statute—Penalty.

Under § 4767, Comp. Laws, the penalties prescribed by § 3723, Id., against usury, were not extinguished by the repeal of said $ 3723 by Ch. 184, Laws 1890, as to any transactions had and completed prior to the enactment of said repealing statute.

Erroneous Instruction—Harmless Error.

While the giving of an erroneous instruction raises an immediate presumption of prejudice, yet a case will not be reversed by reason of such error where it is clear from the record that the complaining party could not have been prejudiced thereby.

Appeal from District Court, Towner County; Morgan, J.

Action in claim and delivery by the National Bank of North Dakota, a corporation, against Frederick Lemke. Defendant had judgment, and plaintiff appeals.

Affirmed.

A. S. Drake, (H. C. Meacham, of counsel,) for appellant.

John W. Maher and M. H. Brennan, for respondent.