(180 N.W.) proper for the defendant to establish by com- [prosecution, taxed at $80.25, and in default petent evidence not only through himself, but of payment be imprisoned for 30 days. The also through others, that he did not indorse assault is well proven by several witnesses. nor sign the names of such payees in such Mr. Sibbald, an attorney at law, the comchecks himself. plaining witness, testified: As evidence tending to establish such fraudulent conspiracy and in proof of its consummation, the plaintiff did seek to prove that the defendant forged in his own handwriting signatures to the checks. Clearly, the defendant had the right to negative such evidence by proof that such signatures were not in his handwriting, or by proof that they were in the handwriting of Graslie, whose testimony, at least in part, was to the contrary. For such purposes, the evidence of the bankers was admissible. See 22 Cyc. 624; Stutsman County Bank v. Jones, 36 N. D. 531, 541, 162 N. W. 402. The issues in this action were fairly submitted to, and determined by the jury. The judgment is affirmed, with costs to the respondent. CHRISTIANSON, C. J., and ROBINSON, BIRDZELL, and GRACE, JJ., concur. STATE v. KLEMMONS et al. (Supreme Court of North Dakota. Nov. 24, 1920.) (Syllabus by the Court.) Assault and battery 91-Evidence sufficient to sustain conviction of simple assault. Defendants were charged with the crime of an assault with a dangerous weapon with intent to do great bodily harm, and convicted of a simple assault. The sentence of each is to pay a fine of $25 and costs, with imprisonment until the same is paid. The verdict is well sustained by the evidence and the judgment is affirmed. Appeal from District Court, Ward County; F. E. Fisk, Judge. Anton Klemmons and another were convicted of simple assault, and they appeal. Affirmed. E. R. Sinkler, of Minot, for appellants. On August 6th, at Kenmare, I was at the sheriff's sale held in a room. Klemmons wanted me to get out. Mrs. Ewarts laid her hand on me and tried to shove me out. Klemmons came up behind her and said: "Knock the - of a b-." He handed brains out of the s— her a monkey-wrench, saying: "Take this and bed the monkey-wrench and threw it on the knock his brains out." The deputy sheriff grabfloor. Klemmons grabbed a hammer, handing it to her and saying: "Use this." She took the hammer, raised it up threatening to strike him when the deputy took it from her. The hammer weighed a pound and a half or two pounds. The testimony is corroborated by three witnesses. The defense is that the assault was made by defendants in defense of their property. In appellants' brief it is said: At the time of the alleged assault the defendant Ewarts was the owner of a certain garage in which she was conducting a garage business, and defendant Klemmons was working for her in such business. The sheriff of Ward county had advertised a sale and was conducting the sale in the building. The property being sold by the sheriff was the property of Birda Ewarts and one Wallin. The sale was upon an execution against Klemmons and he did not own the property. Mrs. Ewarts owned the building. The sheriff and those with him were trespassers upon her property. She requested them to get out of the building. They refused to do so. She seized a hammer which the other defendant handed to her and was about to threaten Sibbald with the hammer in order to get him off the premises, when the hammer was seized by the bystanders. The assault was the result of an old grudge and bitterness. It was not made in defense of property. Sibbald was not a trespasser. He had a right to be present at the sale. Mr. Sibbald testified: It is a little more than two years since Anton Klemmons was removed as administrator of the Olmstead estate. I am attorney for the estate. Two years ago I was acting for the estate in handling the case in which this execution was issued that is in evidence. I got that judgment against him. Klemmons testified: I have known Sibbald two years. He was a trouble maker. He had me arrested. He has been after me for two years. His coming there that day and selling Mrs. Ewarts' property was part of the same deal. I was the administrator of the Olmstead estate. He started this lawsuit against me. He claimed that I was wast ROBINSON, J. The information charges that in August, 1919, in the county of Ward, the defendants made an assault on W. H. Sibbald with a dangerous weapon, to wit, a hammer of two pounds, with intent to do great ing the estate and had done away with a lot of bodily harm. The jury found defendants property. I was removed. He secured a judgguilty of the crime of a simple assault. The ment against me. I have been working for sentence of the court was that each defend- Mrs. Ewarts about four years and have been ant pay a fine of $25 and the costs of the managing her business. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Defendants may well be thankful that the timely intervention of the deputy sheriff prevented the use of the hammer. Affirmed. CHRISTIANSON, C. J., and BIRDZELL, J., concur. Appeal from District Court, Stutsman County; J. A. Coffey, Judge. Action by Lena Thorp against George W. Thorp for divorce. There was a judgment for plaintiff awarding her alimony, and the custody of a minor child and support for the child, and from an order made four years later, forbidding plaintiff to remove from her residence to an apartment house, and from permitting the child to associate with a Icertain person except in plaintiff's company, she appeals. Order reversed in so far as relating to association with such named per GRACE, J., disqualified, did not participate. BRONSON, J. (concurring specially). concur in the affirmance of the judgment of conviction. It is the contention of the defendants that they were justified in attempting to use or in threatening to use a dangerous weapon to prevent the continued trespass of the complaining witness, after he had been ordered to leave the premises involved, and after he had refused so to do; that the jury, by its verdict, has found the defendant guilty of a simple assault and not guilty of an assault with a dangerous weapon; that therefore such simple assault was justifiable, upon this record, as a matter of law. The jury was warranted in finding the defendant guilty of a simple assault upon the information. Section 10890, C. L. 1913; State v. Johnson, 3 N. D. 150, 152, 54 N. W. 547. In the record there is evidence, not only that the defendants had a monkey-wrench and a hammer in their hands, but also that the complaining witness was pushed and shoved just prior to the use of these instrumentalities. The question of whether the assault was justifiable was properly a question of fact for the jury. CHRISTIANSON, C. J., concurs. THORP v. THORP. (Supreme Court of North Dakota. Nov. 1, 1920.) (Syllabus by the Court.) Divorce 303 (2)-Order forbidding mother, awarded minor child, from associating with certain person reversed. In 1915 there was duly entered in this case a judgment dissolving the marriage between the plaintiff and the defendant and awarding to the plaintiff a liberal alimony, giving to her the custody of the minor child and making for its future support a special and generous allowance of $500 a year for 20 years. In 1919 the court made an order forbidding the plaintiff to move from her residence into an apartment house and from permitting the child to go in company with Mrs. Grant, a teacher in the public schools, and a lady of the highest repute. Held, that there is no sufficient reason for the order, and it is reversed. son. S. E. Ellsworth and John W. Carr, both of Jamestown, for appellant. Engerud, Divet, Holt & Frame, of Fargo, for respondent. ROBINSON, J. In 1915 there was duly entered in this case a judgment dissolving the marriage between the plaintiff and the defendant and awarding to the plaintiff a liberal alimony and the custody of her minor child, Margaret Thorp, whose age was then 6 years. In April, 1919, the court made an order forbidding the plaintiff to remove from her residence to an apartment house over a pool room in Jamestown, and from permitting the child to associate with one Mary Grant, except when in the company of her mother. From that order the plaintiff appeals. The order is made on the judgment roll and on the affidavit of defendant. It avers that the plaintiff continuously and against the best interests of the child permits her to be in the company of Mary Grant, who is imbued with a hatred of the defendant; that the purpose of the plaintiff is to remove the child from her commodious home into a certain building owned by Mary Grant, and to place the child in a flat over a pool room frequented by men, who stand around the entrance to the room and often use vile language; that in using the flat and passing in and out of it the child would hear bad language; and defendant fears that an association of the child with Mary Grant may estrange it from her father. Lena Thorp, the plaintiff, makes affidavit that during the life of the child she has at all times taken the utmost care of her, and has ever been watchful of her mental and physical development; that the welfare of the child has always been her first consideration. The plaintiff also shows good reason for leaving her home and moving into the flat, and avers that it is one of the most desirable flats in Jamestown; that it is within three blocks of the public school; that one of the flats in the building is the residence of Mary Grant and her husband, and that she, Mrs. Grant, is one of the teachers in the Bronson, J., dissenting, and Christianson, C. public schools of Jamestown, where she has J., dissenting in part. been teaching for 18 years; that she is an For ather cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (180 N.W.) educated and refined woman, whose moral the home in Jamestown, and $125 per month character is above suspicion; that the pool room is a clean, sanitary place, and well conducted; and that the plaintiff has never heard Mrs. Grant speak ill of defendant or say a thing of him in the presence of the child. Her affidavit is well corroborated by that of Mrs. Grant. In the order, as formulated, the learned judge says, in effect, that the order is granted, not only on the affidavits, but also on his own personal knowledge of the situation and circumstances affecting the relation of the parties, etc. That is in no way proper, if the judge had knowledge of material facts on which to base a decision, he should have stated the same by certificate or affidavit, so that a reviewing court might consider the same. On the facts, as disclosed by the affidavits, no good reason is shown for interfering with the plaintiff's custody of the child or her right to remove her residence to a desirable flat, nor for any order in regard to the association of the child with Mrs. Grant. Defendant had no reason for thinking or suspecting that a lady of good character and high repute would think of doing the child so great an injury as to say a word to lessen her pride of birth and her love for a father who has made for her ample and generous provisions. It appears, however, that more than a year has elapsed since the making of the order appealed from, and that portion of the order which restrains the plaintiff from removing to the flat over the pool room is moot. Judge Birdzell is of the opinion that that portion of the order should be affirmed and hence disagrees to this extent with the opinion of the writer. But he is further of the opinion, in accord with the views of the writer, that upon this record there does not appear to be sufficient reason for prohibiting ordinary communication between the child and Mrs. Grant. The decision of this court is that the order appealed from is reversed in so far as it relates to Mrs. Grant, with costs to the appellant. support money. It further directed that the respondent should deposit $500 annually until the sum of $10,000 had been accumulated for purposes of a fund for the education of the minor child. In April, 1919, the respondent made a motion to modify the decree by providing that the custody of the minor child be transferred to this defendant, or that the decree be modified so as to permanently enjoin the appellant from moving the child into a certain flat, and from permitting such child to come in further contact with one Mary E. Grant. Upon this application, an order to show cause was issued. After a hearing was had on April 28, 1919, both parties appearing through counsel, the court made an order that the appellant be restrained and enjoined from taking the minor child to the apartment involved over a certain pool room, and from making a home for her there, and restraining and enjoining the appellant from permitting the infant to associate with said Mary E. Grant, except when such child was accompanied by her mother. The court in such order further stated that "After considering the previous records and files in this action and the affidavit of Geo. W. Thorp, attached to and served with the order to show cause, and his additional affidavit made this day, and the affidavit of Lena Thorp, and Mary E. Grant, as well as the court's personal knowledge of the situation and circumstances affecting the relations of Mrs. Mary E. Grant to the parties herein, and the location and surand the building in which the plaintiff proposes roundings of the plaintiff's present residence to take up her residence with the child in question, the court is of the opinion that it would be inimical to the welfare of the infant daughter of the parties hereto to have her home in said apartments over said pool room, and in close association with Mrs. Mary E. Grant, who occupies part of the same second story of said pool room building." The appellant has appealed from this oraddition to the original notice and undertakder. The papers returned to this court, in ing of appeal, consist of the following papers: Summons, complaint, affidavit of servBIRDZELL and GRACE, JJ., concur. ice, stipulation of counsel, agreement of the parties, findings of fact, conclusions of law, BRONSON, J. (dissenting). This is an ap-order for judgment, judgment and notice of peal from an order of the district court, re-entry of judgment in the original divorce acstraining the appellant concerning the residence and associations of her child. The facts, necessary to be stated, are as follows: In October, 1915, a decree of divorce between the parties was entered. It awarded to the wife, the appellant herein, the care, custody, and full control of their minor child, with the provisions that the respondent should be permitted to have access to such child at reasonable times, and should have the privilege of entertaining such child and have her with him as much as he desired during vacation periods when such child was not attending school. It further awarded to the appellant tion; also the application of the defendant for modification of decree and for an order to show cause, the order to show cause, the affidavit of the appellant, the affidavit of Mary E. Grant, and affidavit of the respondent, and the order herein involved. These papers are accompanied by a certificate of the clerk of the district court. There is no certificate attached by the judge of the district court who made the order. This case is an equity action. This court may affirm, reverse, or modify the order, so made, if it is to be considered as a modification of the decree of divorce formerly entered in this case. See Rindlaub v. Rindlaub, 19 N. [ case accordingly must be remanded for the D. 352, 125 N. W. 479. This court might entertain, likewise, at a subsequent date after a modification of the order herein, another petition for a further modification. See section 7844, C. L. 1913; Rindlaub v. Rindlaub, 28 N. D. 168, 147 N. W. 725. purpose of settling a record as this court has heretofore held, and in that connection I am of the opinion that upon the settlement of such record the trial court should permit additional testimony to be adduced by the testimony of the parties in open court, and, of other witnesses concerned, as to whether the questions concerning such apartment is not now moot, and the extent to which specifically the original decree of divorce should be modified, if at all, concerning the association of said Mary E. Grant with such child, and concerning particularly her relations, if any, as teacher in the public schools, to such child. Concerning the latter question it is quite cluded, it should have been at least adduced. See chapter 8, Laws 1919. To this court trying de novo this subject-matter, with the power, beyond a mere reversal or affirmance, to enter another or different order, and subject possibly to a subsequent application to amend its order, if so made, there should be presented a record settled as the statute requires, and containing all the requisite evidence. The best interests of the child, and of the parents so require. The due expedition of this controversy, unfortunate as it seems, and containing potential possibilities of further strife and litigation, so demands. CHRISTIANSON, C. J. (dissenting in part). The decree of divorce in this action was entered in October, 1915. That decree provided: "That the care, custody, and full control of said minor child, Margaret Lucile Thorp, be It is apparent in this case that there has been no settlement of the record herein. It does not appear what matters were considered by the trial court, excepting such as mentioned in this order. It does affirmatively appear that the court's personal knowledge of the situation and circumstances affecting the relations of Mrs. Grant and the location and surroundings of the appellant's present residence and the location in which she expected to take up her residence were within the per-evident that if material evidence was not exsonal knowledge of the trial court. It does further appear that the court had under its consideration, in rendering the order herein, the records in the original divorce action. Manifestly, all of these records have not been certified to this court. The transcript of the evidence in such action has not been sent to this court. This court has recently held that upon appeals of this nature a record must be settled as the statute requires; that either the order of the trial court must describe the papers and the evidence upon which the same were made or the record must be settled. Solon v. O'Shea, 177 N. W. 757. It appears in the papers certified to this court that Mary E. Grant has been a schoolteacher in the public schools of Jamestown for a period of more than 18 years. As suggested upon oral argument it is quite possible that this order as made in its broad language restrains the appellant's child from associating with said Mary E. Grant even in the relation of teacher and student, unless the appellant be present. Furthermore, it is quite prob-lege of entertaining said child and having her able, upon the papers as certified to this court, that the question of moving the child's residence to a certain apartment is now a moot question. The order was entered April 22, 1919. The papers in this case were not filled with this court until June 20, 1920. Orders of this character, in effect, modify the decree of divorce entered and ordinarily should be entered as a modification of the original decree of divorce herein. See section 4404, C. L. 1913; Rindlaub v. Rindlaub, 28 N. D. 168, 147 N. W. 725; Houghton v. Houghton, 37 S. D. 184, 157 N. W. 316. It would be mani--the only ruling presented to this court for festly improper to either affirm or reverse this order upon the present state of the record before this court. This court is unable to determine what was the entire evidence presented before the trial court. This court is likewise unable to determine to what extent the question concerning the apartments has become a moot question and the extent to which the association of Mary E. Grant, at least concerning her relation as teacher to such child, requires any modification of the original decree of divorce herein. This * * awarded to the plaintiff. That the defendant be permitted to have access to such child at reasonable times, and have the priviperiods and when said child is not attending with him as much as he desires during vacation school; and that should the plaintiff herein depart this life prior to the time that said minor child reaches her majority, then and in that event the custody and control of said minor child should be, and hereby is, awarded to Mrs. E. W. Thorp, mother of said defendant." In April, 1919, the trial court made an order, giving directions relating to the care of said minor child. This appeal is from such order. The only ruling complained of review on this appeal-is the making of that order. This is not a case like Rindlaub v. Rindlaub, 19 N. D. 352, 125 N. W. 479; Id., 28 N. D. 168, 147 N. W. 725, where an appeal was taken from the decree of divorce, and this court, on a trial de novo, modified the decree, and specifically reserved jurisdiction to make further orders relating to custody of children. See, 19 N. D. 392, 125 N. W. 479. In the case at bar no appeal was taken from the decree of divorce. The original subjectmatter of the controversy was never brought within the jurisdiction of this court. (180 N.W.) While the order appealed from sought to accomplish two purposes, viz.: (1) To restrain the plaintiff from taking the child to a certain flat above a pool room; and (2) to restrain the plaintiff from permitting the child to associate with one Mrs. Grant, except "Said flat is located over a large and wellwhen accompanied by the plaintiff, the two patronized pool room, cigar store, and soft propositions were to some extent interlocked; drink establishment, and that the doorway to and, of course, the trial court was confronted, said flat from the main street of this city opens and required to deal, with the matter as the out upon the sidewalk, at which place there situation then existed. The lapse of time has frequently and almost continuously are congresomewhat changed the aspects of the matter, gated large bodies of men, and at and around and the majority members have seen fit to the entrance of which place oftentimes there treat each of the two provisions separately. men of about town, having nothing in particuare loafing and loitering large numbers of young I am inclined to agree with the majority lar to do, and frequently vile and obscene lanmembers in so far as they say that that por- guage is used at and around said entrance and tion of the order which restrained the plain- on said street by promiscuous persons, such as tiff from taking the child to the flat over the usually congregate around and about pool halls. pool room has become moot; for it appears That in order for said child to live in said flat that the term during which plaintiff propos- it will be necessary for her to pass in and out ed to occupy such flat expired long before thereof, and by and through said crowds, and this case was submitted to this court. I whol- to continually hear such obscene and indecent ly disagree with the majority members, how-language, and witness such loud and boisterous ever, when they say that that portion of the order which restrained the plaintiff from permitting the child to associate with Mrs. Grant, except in the presence of the plaintiff, should be reversed. In my opinion this court cannot, upon the record before us, do other-officers of the city, and is a clean, sanitary, wise than affirm the order in toto. It should be borne in mind that the order before us was made by the same judge who originally tried the case and rendered the decree of divorce. The evidence in the case is not before us, but the trial judge knew what that evidence was. He knew the parties to the action, the child, and Mrs. Grant. He was familiar with all the surrounding circumstances. He is a resident of the city of Jamestown (a city having a population of about 6,600), and his chambers are in that city. He was familiar with the various places involved in this controversy. He knew the character and location of the home where the child has been living. He knew the location of the pool room and its surroundings. He knew what, if any, part Mrs. Grant took in the trial of the divorce action. No one doubts that his actions were actuated by the highest motives, and a sincere belief that the ends of justice would be best subserved by ruling as he did. Nor can any one deny that the district court had power to give directions for the care of the child. That power is expressly recognized by section 4404, C. L. 1913, which provides: "In an action for divorce the court may be fore or after judgment give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper and may at any time vacate or modify the same." Section 4404, C. L. 1913. In the decree of divorce the plaintiff was awarded the home which had formerly been conduct." There are, it is true, affidavits by the plaintiff and Mrs. Grant (the owner of the building), to the effect that the pool room is under the constant supervision of the peace and well-conducted place. But surely this court cannot say, upon this record, that the condition related in the affidavit of the plaintiff is not the true one. That is a matter upon which the findings of the trial court should control. What about the second provision of the order? As already stated, we have no means of knowing what connection, if any, Mrs. Grant had with this action at its inception. The evidence upon which the decree was based is not before us. Upon the oral argument it was stated by respondent's counsel, and not denied by appellant's counsel, that Mrs. Grant took some interest in the matter at and prior to the time the decree of divorce was entered. It was further stated that the defendant felt that she was largely responsible for the trouble between the parties to this action which resulted in the divorce proceedings. In his affidavit defendant says: "This defendant verily believes that the said plaintiff is not fully aware of the embarrassment caused this defendant by allowing said Grant to associate with said daughter. That many times and frequently said Grant has the daughter of this defendant on the streets and in public places when her mother is not with her; that when said Grant is not with said child that the child is free and happy with her father at such times as she visits him or meets him; that frequently when this defendant meets said Grant on the street, whether with or without the child, said Grant appears to endeavor to display in the presence of said child and others and in public places, by facial expressions |