N.D.) STATE v. S EIGFRIED such a power expressly given under the new Board of Regents Act of 1915 (Laws 1915, c. 237). It can hardly be believed, however, that it was the intention of the Legislature that children of any age or any degree of preliminary education should be admitted to these institutions. Of course, if the Legislature definitely pre. scribes the standards of admission, no board of trustees may depart from its determination, but otherwise the board of trustees must be held to possess the usual powers, which would include the giving of aid where most needed. Although counsel for appellant contends to the contrary, we are satisfied that the answer sufficiently pleads the fact that the accommodation of the plaintiff would result in denying the use of the home to others more in need of its comfort and support. The board of trustees in charge of the Manifestly the law does not specifically en- GRACE, J. (dissenting). I cannot agree that the word "all," as used in section 1776 of the Compiled Laws of 1913, has the restrained meaning attached to it by my As The judgment of the district court is af- sociates in the majority opinion. The word firmed. ROBINSON, J. (specially concurring). The relator sues for a mandamus to compel the defendants to admit him as a member of the Soldiers' Home at Lisbon. He appeals from an order and judgment denying the suit. By answer which is admitted the defendants show that according to the rules of the home no person can be admitted who has an income in excess of $400 a year; that in his applica tion for admission to the home the relator swore that his income did not exceed $400 a year, and the same is false and untrue; that he owns 400 acres of land in Ransom county, N. D., free of incumbrances and 16 lots in Lisbon on which he has a comfortable home fitted with electric lights and modern conveniences and in which he and his family reside; that the land is worth $50 an acre and the lots are worth $2,000. The rents of the land are at least $500 a year, and the relator has a pension of $30 a month. The home is of limited capacity, and the admission of the well to do would crowd out the needy veterans. However, it is the contention of counsel for relator that all disabled persons who have served in the army and have been honorably discharged are entitled to the benefits of the home regardless of their wealth or the capacity of the home. The statute reads thus: "Sec. 1776. The object of the soldiers' home shall be to provide a home and subsistence for all honorably discharged soldiers, sailors and marines who have served in the army or navy of the United States, and who are disabled by disease, wounds, old age or otherwise, and their wives and widows." The object of the statute was as far as practicable to provide a home for all of a certain class who need a home, but not for all such as may apply, regardless of their needs and the capacity of the home. Regardless of the word "all" or any other word in the statute it must be given a construction in accord with reason and common sense. "all" in said section must be accorded its ordinary and usual signification. The word "all" is defined by Webster's International Dictionary as follows: "The whole number, quantity, or amount; the the whole; totality; every entire thing; everything included or concerned; the aggregate; thing or person.' In State v. Maine Central, 66 Me. 510, the court said, defining the word "all": "All' means everything, or the whole number of particulars-the whole number." Section 1776 declares the object of the Soldiers' Home shall be to provide a home and subsistence for all honorably discharged soldiers, sailors, and marines who have served in the army or navy of the United States, or otherwise, and their wives and and who are disabled by disease, wounds, old age, widows. It is my opinion that any old soldier, sailor, States army or navy, and who has been or marine who has served in the United honorably discharged, if he is disabled in the manner set forth in such statute, as a matter of strict legal right is entitled to be admitted to the Soldiers' Home if he wishes to be. The our state, and all that is needed to gain him word "all" includes every such soldier within admission to the Soldiers' Home is that he tion 1776. His admission thereto does not bring himself within the provisions of secdepend upon whether he has or has not money or property; neither do I concede that the ministration of the state to the care and comfort of the soldiers is to be understood in the nature of a charity, nor is the maintaining of a home for the care, comfort, and pro tection of such old soldiers to be classed as a charitable institution. Rather is it the effort on behalf of the state to show its gratitude to the brave men who, when the life of the nation was imperiled, gallantly came to its defense, and offered to give up their lives in the defense of their country, and in the defense of liberty. The state in such case is not conferring charity, but rather is it engaged in 7. CRIMINAL LAW 1170% (2) - INSANITYEXPERT TESTIMONY. No reversible error was committed where a tory of crime would not generally result in a medical expert was asked whether a family hisdescendant being in the penitentiary, and where the expert answered that "criminal tendencies are not inherited," and even though there was no proof of any such family history. 8. WITNESSES 372(1)-CROSS-EXAMINATION -PREJUDICE OF WITNESS. the payment of a debt of gratitude. 40,000 | inary examination had been given through an acres of land were granted to the state to interpreter and was not understood by the stemaintain the Soldiers' Home, to which all tion is merely asked for the purpose of laying nographer who transcribed it, when the quessoldiers qualified under section 1776 might the foundation for impeachment. retire if they desired, to spend their declining years when old age or sickness was upon them. I cannot bring myself to believe that the Soldiers' Home may be classed as a charitable institution, and I am confident that it is open to all and every one of the old soldiers in this state who come within the qualifications of section 1776. I am also further of the opinion that the board of trustees have nothing to do with the admission or exclusion of the old soldiers and have no power to make any rules or regulations in regard to their admission or exclusion, but such qualifications for admission are those, and only those, which are contained in section 1776. The board of trustees have the power to make rules regulating to some extent the conduct of the old soldiers after their admission to the institution. STATE v. MUELLER. (Supreme Court of North Dakota. May 9, 1918. Rehearing Denied June 10, 1918.) (Syllabus by the Court.) 1. CRIMINAL LAW 11702 (1) - WITNESSES 240 (2)—ALLOWANCE OF LEADING QUESTIONS-PREJUDICE. The allowance of leading questions is largely in the control of the trial court, and no prejudice can be assumed where the testimony elicited is afterwards testified to by a witness of the party complaining. 2. HOMICIDE 334-APPEAL IMMATERIAL ERRORS. Where evidence of guilt of the act of a homi- not be considered where the matters in dispute IDENCE-REPETITION. It is not error to exclude testimony which has been repeatedly given, even though the ques tion is not exactly in the same form as that which has been before answered. 5. CRIMINAL LAW 364(6)—EVIDENCE-"RES GESTÆ." Where a person shoots several others in succession and within the space of less than an hour, and is tried for the murder of the first one shot, all of the shootings are part of the res gestæ. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Res Gestæ.] 6. WITNESSES 388(8);- EXAMINATION OF DEFENDANT-PRELIMINARY EXAMINATION IMPEACHING EVIDENCE. No error is committed in asking the question, "Didn't you testify in answer to the question I am reading now, and make the following statement when you were at the preliminary examination?" etc., nor is there any merit in the contention that the evidence on the prelim The ill feeling and prejudice of a witness can always be shown on cross-examination. 9. CRIMINAL LAW 1170%1⁄2 (1)—REFUSAL of HYPOTHETICAL QUESTION-REVERSIBLE ER ROR. The mere refusal to allow a hypothetical question will not constitute reversible error, where later on in the trial the utmost freedom of examination is allowed. It is not necessary that the name of a witness who is called in rebuttal should have been written upon the information. 11. WITNESSES 393 (3)—ADMISSION OF EviDENCE-TESTIMONY OF STENOGRAPHER. Where a stenographer testified as to what he heard upon a preliminary trial, and not as to the contents of his notes, and there is no evidence that he did not understand the German language, no error is committed in allowing him IN It is not error to instruct a jury that: "In order to constitute murder in the first degree as charged in the information the killing must have been willful with malice aforethought, and with premeditation and deliberation. There must have been a specific, deliberate, premeditated intention to take life, unaccompanied by is a prior determination to do the act in quesany circumstance of mitigation. The generally accepted meaning of the word 'premeditation' tion and then determination to do it, but it is not essential that this intention should exist for any considerable period of time before it was carried out. If the determination is formed deliberately and upon due reflection, it makes no difference how soon the fatal resolve was carried into execution. An act is done willfully when done intentionally and on purpose." "Murder in the second degree differs from murder in the first degree only in the fact that as to the second degree there is no premeditation or deliberation. Thus, where a person forms a design to kill in the midst of a conflict and immediately executes such design, the killing is not premeditated, and is therefore no higher offense than murder in the second degree." Appeal from District Court, Stutsman County; J. A. Coffey, Judge. John Mueller was convicted of murder in the second degree, and he appeals. Affirmed. Knauf & Knauf, of Jamestown, and John Carmody, of Fargo, for appellant. John W. Carr, State's Atty., and Louis Tellner, Asst. N. D.) STATE v. MUELLER State's Atty., both of Jamestown, and Wil-opened the door the defendant, John Mueller, liam Langer, Atty. Gen., for the State. BRUCE, C. J. The defendant in this case was convicted of the crime of murder in the second degree. Practically the only defense is that of insanity. The abstract contains nearly 600 printed pages. Appellant's brief contains 73 assignments of error, and the rules of this court are entirely ignored which require "the assignments upon which he relies to be set forth," and that "the brief shall contain such portions of the record as will enable the court to clearly understand the nature of the case, and where rulings on the testimony constitute the errors complained of, sufficient explanatory facts or evidence shall be recited." See rule 34 (145 N. W. xiii). ( These omissions are, no doubt, due to the fact that the principal counsel has been called to the service of his country, and are ignored by this court for that reason, and for the reason that it does not desire that any one shall be imprisoned for 30 years without Defenda full opportunity for a hearing. ant's omissions, however, have rendered an examination of the case extremely laborious and extremely difficult. was began shooting with a revolver. Frederick Hins describes what happened, as follows: "Somebody had closed the door, but I don't I then got It was not me. know who it was. ler was standing behind the horse which Fulda behind the colt to drive it into the barn. Muchad watered last. I did not see Fulda. I wanted to drive the colt back to its place. He shot I got about eight feet from where Mueller was. see any gun from where he shot me. When he shot me he was It was John Mueller, the defendant. I did not me; then I saw it. shot me. Was so scared I don't know where standing there until I came up and until he he shot me first or where the shot hit me first. After he shot me, he shot me immediately did not again. The second time he hit me up here. I noticed he struck me up here. He shot me through the he shot me again. say anything. I turned around and ran out, and foot; I mean he hit me though the leg instead In the barn he shot me three of the foot. After I was hit the third time, I fell down. I did not quite fall down altogether, times. but almost fell down or collapsed. I got out I did not of the barn. My wife came running. She was feeding the pigs in the old barn. out. I did not see Mueller after I got out. see anything else besides my wife when I got I did not see Mueller until my wife shot dead. I mean she fell down before me She did not die. and was completely dead. She got up again after a while. When I saw He Mueller. He was standing beside me. The defendant, John Mueller, is charged in my wife shot down like she was dead, I saw the information with the murder of Valen- was standing quiet and looking. He did not back upon her feet. She was holding my arm tine, otherwise called Fulda, Hins, on Decem-point the gun at me right away. My wife got She ber 25, 1915. Valentine was 17 years of age when she was shot. He came up behind and After she got up she and the defendant was 20 years old. The de- shot her and she fell down before me. said, 'John, are you shooting on purpose, or fendant lived with his parents six miles north was shot in the neck. John said, 'Yes.' He of Medina, in Stutsman county, and Valen- what is the matter?' He tine Hins lived with his parents four miles said, 'We had this made up three months ago My wife north of Medina. The Hins family had lived already that this was to happen to you.' did not say anything else. there about 5 years at the time the crime said, 'You were with us last evening, and we He said, 'Well, we was committed. The Hins and Mueller fam- thought you were good.' ilies appear to have been friendly, and visit- are Muellers.' My little daughter same out and shot.' Mueller put the revolver up to her ed back and forth until January, 1915, when got hold of me and said, 'Oh, God! Father is they became unfriendly because of undue in- breast and said, 'Get away or I will shoot you.' timacy between Gustave Hins, a brother of Then he put the revolver up to the breast of the murdered boy, Valentine, and Anna my wife and said, 'Go away or he would shoot and said I should go away or he would shoot. Mueller, a sister of the defendant, John her.' And then he pointed the revolver at me Mueller. Some time about January 9, 1915, I said, 'John, have pity on me and do not kill Then my wife said I should Gustave Hins, having been charged by the me altogether.' come along. Then I went in. Up to this time I had not seen Fulda." Mueller family with this offense against Anna Mueller, ran away and left the country. From that time until the time of the murder, on December 25, 1915, the two families did not visit back and forth and were not very friendly. The defendant, John Mueller, had not been to the Hins home for a year prior to the evening of December 24, 1915, the night before the murder was committed. The defendant went to the Hins home on the afternoon of December 25, 1915, and, together with Valentine Hins and Frederick Hins, the father of Valentine, went to the barn on the Hins farm to do their chores. Valentine Hins and the defendant, John Mueller, went into the barn. Frederick Hins, the father of Valentine Hins, was working outside trying to drive some colts into the barn. When he got close to the barn he noticed that some one had shut the door which * * * The witness then details going to the house, and their son Valentine, or Fulda, as they sometimes called him, coming to the house in a wounded condition, and details an attempt made by the defendant, John Mueller, to get into the house, and how they refused to let him come in until he had put down his revolver. Prior to the shooting of Frederick Hins and his wife the defendant and Fulda Hins were in the barn with the door shut, and Fulda, or Valentine, was shot while in the barn. After the defendant had laid down his gun the Hinses let him into the house. Mr. Hins, the father, said to the defendant: "John are you drunk or what is the matter with you?" And the defendant replied, "I am as sober as you." And it appears from the testimony that the reason given by the defendant for shooting was that he wanted to That the defendant knew what he had done and had told his father and mother about the shooting when he reached home is also very clear. The Muellers immediately went to the Hins home, and upon reaching there informed the Hinses of what the defendant had told them, and the evidence clearly shows that Mr. and Mrs. Mueller learned of the shooting before they got to the Hins home. Upon reaching the Hins home, Mrs. Mueller, mother of the defendant, told Mr. Hins and Mrs. Hins that the defendant had said that he “had accidentally shot Fulda." marry Johanna Hins, daughter of Frederick, home, although he pretends not to be able to Hins, and that he "could not get her." These remember what he told his brother or father same statements are testified to by Mrs. Hins or mother when he got home. a little later on in the abstract. The witness Frederika Hins, mother of Valentine Hins, details what happened in almost the same language. She says that she heard Frederick Hius ask the defendant, John Mueller, "Are you drunk, or what is the matter with you that you shoot all of us?" And the defendant replied, "I am as sober as you." The witness says she said to John Mueller, the defendant, "You were with us last night, and I thought you were favorably inclined towards us." He said, "Well, we are Muellers." She asked him if he was shooting on purpose, and he said, "Yes; we decided three months ago that we were going to do this to you." This same witness describes what happened after the shooting as follows: "I next saw John after he and Valentine came up to the house. I was inside the house then. The first thing that called my attention to their coming up was Fulda saying quietly, 'Mother, open the door.' Frederick said, 'Is John Mueller there too?" Fulda said, 'Yes.' I said, "Then we will not open because he will shoot us again.' John said we should open up or he would shoot through the door." Then the witness details how the defendant finally put down his revolver and came up to the door and was let in. She also describes how Valentine Hins, or Fulda, as he was call ed, looked when he came into the house. She says: "When he came in I noticed that Fulda's head looked as though some one had poured a pailful of blood over him. The blood was running down and was all run down from the top of the head." The witness continues as follows: "After John laid the gun on the cellar door and I let him in the house, he came in and went up to Frederick and said, 'Forgive me, Uncle! forgive me, Uncle!' Frederick said, John, do you think I could forgive you! Look at me! You put three bullets into me and shot my wife and Fulda! John said. 'If I hadn't done it yet, I would give a million dollars.' Then I went out and took the revolver and ied it in the ashes the people came, and I brought it in and laid it on the table.' stuck it into the ashes. * * After I bur The witness then stated that the defendant gave his reason for the shooting as follows: "I said, 'I don't know why.' He said, 'I tried to get Johanna, and I saw I can't get her, and that is why I shot.'" Mrs. Mueller, the mother of the defendant, says: That she was in the room when John came home that night, and "I went out when I heard asked him [defendant]. How did you shoot and there was something happened. We always where did you shoot them? We were talking about that on our farm before they were hitchMy husband had told me ing up the horses. that John had said to him that Hins had said to him he had shot." Again, in answer to the question, "But your husband, Christ, had told you that John had told him that he had shot over at Hins?" she answered, “Yes.” It also appears from the testimony of the defendant's father that the defendant had told him all about the shooting after he had reached the Mueller home. The testimony also shows very clearly that during the period of the shooting the defendant, John Mueller, had reloaded, or partly reloaded, his revolver. The revolver with which he did the shooting was a gun with five chambers, or a five-shot revolver. When the revolver was found after the shooting, four of the chambers were empty, and one contained a loaded cartridge, but the testimony shows that there were at least five shots fired. Mr. Hins had been shot three times, Mrs. Hins had been shot once, and Valentine Hins at least once. mony would indicate that the murder committed by the defendant was contemplated and planned before the act was performed. The testimony of Frederick Hins shows that the barn door had been closed by the deFulda fendant just prior to the shooting. or Valentine Hins was in the barn and was shot while the door was closed. When Frederick Hins went up to the barn and opened The defendant then took one of the Hins the door, John Mueller, the defendant, imhorses and rode to his home. After he reach-mediately shot him three times. The testied there he told what had happened at the Hins home. He claims that he has no recollection of the shooting at the Hins home. He however, admits remembering everything that happened that evening except the actual shooting. He remembers hearing Ida Hins say to her father, "Are you shot? Are you shot?" He remembers that he had the gun in his hands. He admits remembering that he threw it away. He admits remembering that he rode home on Hins' horse. He says The defendant's only real defense, therefore, is that he was insane when he committed the act, or, in other words, that he had an epileptic fit. The defendant's father and mother and some other members of the family attempt to show that he had suffered injuries to his head and was subject to fits when anything angered him for about four There is, however, nothing in the testimony defendant were sane and capable of entershowing that any of the friends or neighbors taining it. of the Muellers had ever heard of the fits. The defendant was confined in the Stutsman county jail from December 25, 1915, until the time of this trial in July, 1916, under such circumstances as to be constantly reminded of all of the circumstances connected with this entire matter, but the evidence does not show that he had any fits during that time. The defendant's father and mother attempt to show that, whenever anything was said regarding the trouble between Gustave Hins and Anna Mueller, the defendant, John Mueller, would immediately become angry and have a fit. The trial of this case in district court occupied several days' time, and, although this same matter was constantly referred to, and the defendant was continuously in court, there is no evidence of his having had any fit on this occasion. The mother of the defendant also says that the first person she ever told that her son John Mueller had fits was his counsel in the case. There is, in short, no dispute about the fact of the shooting of Mr. Hins, Mrs. Hins, or Valentine Hins by the defendant. Neither can there be much dispute that the defend lant's acts constitute a clear case of murder. The defendant's sole claim is that he had a fit, caused by some language used in the barn by Valentine Hins, and that he did not know what he was doing when he shot. He remembers practically every detail of the occurrences happening upon this day up to the moment that he claims this remark to have been made. He does not claim that he was not fully responsible for his actions up to that time. His explanation of how he happened to have his revolver with him on that day is very unsatisfactory. He claims to have carried it in his overcoat pocket, and he says that he did not take his overcoat to the barn, but he offers no explanation of how the revolver got from his overcoat pocket into the pocket of his inside coat. He makes no explanation of the closing of the barn door prior to the shooting of Valentine Hins. Counsel next complains of the question: in the head on the 25th of December on your There is no doubt of the rule relied upon by counsel for defendant that a question which assumes the existence of a fact essential to a conviction where there was no evidence that fact existed is entirely inadmissible. The record, however, elsewhere shows that the son referred to had been hurt, and the rule is not here applicable. [2-4] Objection is next made to the allowance of testimony as to blood being upon one of the colts, and that the same was entirely well before John went into the barn. It is claimed that the questions assumed facts not in evidence and have no bearing upon the issue in the case. We cannot see, however, that any reversible error The matter had no bearing upon the sanity or insanity of the defendant, and that we consider to be the only question in issue. was committed. The evidence, indeed, is so overwhelming as to the guilt of the defendant, John Mueller, that he intentionally killed the deceased, and that the same was done with a criminal intent, and that the act would constitute murder, unless perchance the defendant was insane, that it is really immaterial that any technical errors were committed. For this reason we also deem the alleged errors assigned on the ground of refusing to strike out testimony as not being responsive to have been harmless error if error were committed. Next follows several alleged errors in the admission of testimony. This testimony, however, was elsewhere given without objection and had little, if any, bearing upon the question of insanity. Error is next assigned on the refusal to allow the witness Fred Hins to answer the question, "If you said that to Mrs. Mueller, you don't remember it now. Is that right?" The witness had, however, already denied making the statement, and no material error was committed. [1] The first error complained of is the overruling of defendant's objection to the The first three errors complained of under question, "Did he say anything about being assignment No. 8 are not worthy of notice. at Muellers?" This was objected to as being As to the fourth, which is that the court errleading, and it is claimed that it was asked ed in not allowing the witness Fred Hins to for the purpose of proving that the Hinses and answer the question, "Did you tell Louie the Muellers were enemies, and that there that at the time he was talking to you at was a tribal fued between them. This fact, the hospital that when John had the revolvhowever, was later testified to by Mrs. Hins er at the time he shot you and Reca out at without objection on the part of the defend- the barn that he looked terrible, and that he ant, and we can see no prejudice even if the acted just like a mad dog and frothed at question was otherwise objectionable, of the mouth, or words to that effect?" the obwhich we have some doubt. Even if the ques- jection was that this fact had been denied tion was leading, its allowance was within several times, and the testimony would be the discretion of the trial court, and all that a repetition and an improper subject on the testimony would tend to show would be cross-examination. The complaint of the a family feud and a state of mind that would tend to prove a criminal intent, and of this appellant is merely that the question had not been before asked in the same form. |