Page:North Dakota Reports (vol. 48).pdf/360

 Cameron & Wattam and Arne Vinje, for respondent.

Where evidence cumulative in its nature is excluded or stricken out, even though done so improperly it is not prejudicial if the issue covered thereby is not in dispute. State v. Moeller, 20 N. D. 114.

The question of the competency of a witness, after hearing the evidence, is so largely a question of fact, and so particularly within the knowledge and discretion of the trial court, that the appellate court will not interfere unless the record shows a clear case of error. Guthre v. Shafer, 7 Okla. 459; Mills v. Cook, (Tex.)}} 57 S. W. 81; People v. Harrison 18 Cal. App. 285; 123 Pac. 200; People v. Tyree (Cal.)}} 132 Pac. 784.

The question whether the witness offered has sufficient understanding to be competent as a witness is a preliminary question for the court. Pittsburg and W. R. Co. v. Thomson, 82 Fed. 720; McKinstry v. Tuscaloosa, 54 So. 629; Covington v. O'Meara, 133 Ky. 762; Bowdle v. Detroit Street Ry. Co. 103 Mich. 272.

The question as to whether a witness possesses the requisite qualifications is for the trial court, and its ruling will not be reversed in the absence of palpable error. Booneman v. Chicago, St. P. M. & O. R. Co. 19 S. D. 459; 104 N. W. 808.

The rulings of the trial court as to the qualifications of a witness offered as an expert will not be reversed in the absence of palpable error appearing in the record. Waterhouse v. Jos. Schlitz Brewing Co. 16 S. D. 592; 94 N. W. 587.

, J. This is an action for indecent assault. The plaintiff recovered a verdict of $700, and defendant has appealed from the judgment entered upon the verdict. The defendant is the owner of a store in the village of Tuttle in Kidder county in this state. The plaintiff is a married woman, living with her husband and two children in said village of Tuttle. Her husband is a laborer. In the fall of 1920 the plaintiff and her husband rented from the defendant a small building which adjoins his general store, for the purpose of operating a cream station therein, and the plaintiff thereupon engaged in the business of buying cream in that place. The only method of ciosing or locking the cream station at night was by locking the door leading to the street from the inside and passing out through a door leading into the store. The complaint alleges, and the plaintiff testified, that on the evening of August 25, 1920, after turn-