Page:North Dakota Reports (vol. 3).pdf/341

 from the effects of the vicious testimony. “It had poisoned their minds, and its effects could not be erased from their memories.” But to hold that where an over-willing witness, in answer to a proper question, volunteered immaterial and irresponsive matter in his answer, such error could not be cured by immediately withdrawing such improper matter from the jury, would open the door for a reversal of a large percentage of criminal cases, and for no material reason, and for no error of the prosecution or the court. But it is claimed this matter was not taken from the jury. We think it was in effect. As soon as the improper testimony left the mouth of the witness, counsel moved that it be striken out, and the court, in the presence and hearing of the jury, so orderdordered [sic]. No intelligent juror misconceived the situation. In a case of this kind, (and we need go no further.) where, at most, the evidence had but an indirect and inferential bearing upon the case, the court had no further duty pertaining to the matter. It was but an incident, and by no means an important incident, in the trial. Before the general charge was reached, it had naturally passed from the mind of the court. If counsel desired a specific instruction on the point, he should have requested it. Doubtless, in the abundance of protection that courts properly throw around persons accused of crime, such a request would have been given. We do not say that a refusal to give it would have been error, but we do say that no error can be predicated upon the failure of the court to give such specific instruction without request.

The testimony of the state developed the fact that Mrs. “Hill was present at the rink when the shooting occurred, and might have been an eyewitness of the affray, or at least a portion of it. When the state rested, the plaintiff in error requested the prosecuting attorney to produce Mrs. Hill and have her sworn as a witness for the state. This the prosecutor declined to do, whereupon counsel for plaintiff in error moved the court to order that Mrs. Hill be so produced and sworn. The motion was denied, and this ruling is assigned for error. It is proper to state