## Facts

- Myron R. Kent was charged with murdering his wife by personally firing the fatal shot.
- The undisputed evidence showed the victim was shot and killed by another person.
- Kent was many miles away when the killing occurred; the prosecution theory was that Kent instigated or counseled the shooter.
- Kent was convicted of murder in district court, and the jury set the death penalty under state statute.
- At trial, the court allowed a privately retained, out-of-state attorney (not admitted in North Dakota) to assist the state’s attorney.
- The prosecution offered acts and declarations of an alleged confederate (including statements made after the homicide) and testimony about a “book” and its translation through that confederate.

## Issues

1. Whether, under North Dakota statutes, a defendant who allegedly instigated a murder may be charged and tried as a principal without pleading that he advised or aided the actual killer.
2. Whether it was reversible error to allow privately retained, out-of-state counsel to assist the public prosecutor.
3. Whether acts and declarations of an alleged confederate were admissible against Kent without first establishing prima facie proof of Kent’s participation in a conspiracy.
4. Whether statements made by the alleged confederate after the homicide and evidence concerning a “book” and its translation were inadmissible and prejudicial.
5. Whether admission of improper evidence in a capital case requires reversal even if other evidence could support the verdict.

## Decision

- The Supreme Court of North Dakota reversed the conviction and ordered a new trial.
- The court held the information’s form was not fatally defective because state law treated one who would have been an accessory before the fact as chargeable and punishable as a principal.
- The court found no reversible error solely from permitting private counsel to assist the state’s attorney, so long as the public prosecutor remained in control.
- The court held the trial court erred by admitting confederate acts and declarations before the State made a prima facie showing of conspiracy involving Kent.
- The court held statements made after the homicide was completed were inadmissible against Kent under conspiracy-related evidentiary principles.
- The court treated the improper admission of this evidence (including the “book”/translation testimony) as requiring reversal, particularly given the death sentence.

## Legal Principles

- Where statute abolishes the common-law distinction between principals and accessories before the fact, an instigator may be indicted, tried, and punished as a principal without additional accessory allegations beyond what would be required against the direct actor.
- A public prosecutor may be assisted by privately retained counsel in a criminal case, including counsel from another jurisdiction, if the public prosecutor retains control and the court supervises the prosecution.
- Co-conspirator (confederate) acts and declarations are admissible against a defendant only after the prosecution makes a prima facie showing that the defendant participated in the conspiracy.
- Statements by an alleged confederate made after the criminal objective is completed are generally inadmissible against other alleged conspirators because they are not in furtherance of the conspiracy.
- In a capital case, admission of improper evidence can require reversal even if the remaining evidence might otherwise sustain the conviction.

## Conclusion

The court reversed Kent’s murder conviction and death sentence and remanded for a new trial because the jury heard confederate statements and related evidence without the required prima facie proof of conspiracy, including inadmissible post-homicide statements, errors considered especially prejudicial in a capital prosecution.


State v. Kent, 62 N.W. 631 (N.D. 1895)