Lowe v. Dist. Court of Ward Cnty.

• Decision Date: 04 January 1921
• Parties: LOWE v. DISTRICT COURT OF WARD COUNTY et al.
• Court: North Dakota Supreme Court

48 N.D. 1

181 N.W. 92

LOWE

v.DISTRICT COURT OF WARD COUNTY et al.

Supreme Court of North Dakota.

Jan. 4, 1921.

Syllabus by the Court.

In a proceeding for the exercise of the superintending control of the Supreme Court, where it appears that the defendant in a criminal action filed a double affidavit of prejudice against both the trial judge and the county and judicial subdivision, and thereupon the trial judge so disqualified made an order transferring the criminal cause from Ward county to Ramsey county, without designating the judge who should preside at the trial in the transferred county, as the statute requires, and where further it appears upon the showing made at the hearing before the Supreme Court that a fair and impartial trial in Ramsey county for either the state or the defendant is doubtful, and where, further, under the peculiar circumstances surrounding the case involved, as stated in the opinion, it is appropriate that the superintending control of this court be exercised in the interests of justice to the end that a speedy and early trial be had without remanding the case again to the judge so disqualified for the consideration of the entry of another proper order herein subject possibly to another application to this court, it is held that the Supreme Court, under its superintending control, will designate, as required by statute, the county and will direct the district judges in the judicial district to which the transfer of the cause has been ordered to designate the trial judge to preside at the trial of such criminal action.

Application by John C. Lowe, in the nature of certiorari for the exercise of the superintending control of the Supreme Court, against the District Court of Ward County and others relative to the transfer of a criminal prosecution against petitioner. Minute order directing transfer to Pierce county and for the designation of a trial judge by the district judges of that judicial subdivision entered.

Christianson, C. J., and Birdzell, J., dissenting.McGee & Goss, of Minot, and Seth W. Richardson, of Fargo, for petitioner.

F. E. Packard and E. B. Cox, Asst. Attys. Gen., for defendants.

PER CURIAM.

This is an application to this court for the exercise of its constitutional superintending control over inferior courts through a proceeding in the nature of certiorari. The petitioner was arrested on October 30, 1920, at Minot, in Ward county, charged with statutory rape. Before a justice of the peace he waived examination, and thereupon it was ordered that he be held to answer at the next term of the district court in Ward county.

On November 8, 1920, in the district court of Ward county, an information was filed charging the petitioner with such crime. On November 9, 1920, the petitioner filed a demurrer to the information, which was overruled by Hon. K. E. Leighton, judge of the district court. Thereupon the petitioner entered a plea of not guilty. This was followed by the filing of an affidavit of prejudice against the trial judge and also against the county and the Fifth judicial district, pursuant to the provisions of section 10766, C. L. 1913. On the same date Judge Leighton ordered that further proceedings be held in the district court of Ramsey county and directed the clerk to send the necessary records in this action to the clerk of the district court of Ramsey county.

Thereupon the petitioner made application to this court for a writ of certiorari requesting that this court exercise its superintending control over inferior courts and issue a writ directed to the district court of Ward county, addressed to Hon. K. E. Leighton as presiding judge thereof, to cause to be forwarded to this court the record for review and to have entered an appropriate order transferring the criminal case against the petitioner to McHenry or Renville counties. In the application it is stated that the petitioner is 47 years old and an attorney at law; that he was a candidate for nomination to the office of judge of the district court of the Fifth judicial district at the primary held in June, 1920; that he was then duly nominated for such office; that at the general election held November 22, 1920, he, together with one Geo. H. Moellring, received the plurality of all votes cast for such office; that at such election Hon. K. E. Leighton and Hon. F. E. Fisk, now district judges, were candidates and received a less number of votes than those cast for the plaintiff and said Moellring; that the petitioner is qualified by law to assume the office of district judge on the first Monday of January, 1921, and will and intends to qualify and assume such office on the said date. The petition, with the affidavits attached, also states that by reason of the prejudice of the trial judge, and of the people of Ward county, and of the Fifth judicial district, the plaintiff cannot, within such judicial district, have a fair and impartial trial; that he demands that the cause be transferred for trial to an adjoining county and judicial district, to wit, to McHenry county or to Renville county; that during the political campaign the candidacy of the petitioner was bitterly assailed by his opponents and to his best knowledge and his belief the filing of the charges against him was solely for political purposes; that the petitioner is entirely innocent of the charge and that the removal of the place of trial, so great a distance from Minot, to Ramsey county, would seriously and greatly inconvenience the plaintiff. On November 23, 1920, the matter came on for hearing before this court. The defendant filed a motion to quash and also separate returns. The clerk of the district court in his return states that he has forwarded to the clerk of Renville county certified copies of the records in the criminal case pending against the petitioner. Hon. K. E. Leighton in his return denied any knowledge of the jury having been called in McHenry county in the month of November or in Renville county, and alleges that the regular term of court in Renville county is not set until January. Further, he denies that political opposition framed the charge involved or that the complaining witness was induced to make such accusation either in the hope of reward or otherwise, and further he states that the transfer was made where trial could be had at the earliest opportunity, where the train service is excellent, the hotel service good, and a jury already impaneled; that the hotel accommodations are inconvenient at Towner, in McHenry county, and that the train service to Mohall, in Renville county, is inconvenient and the courtroom is exceptionally poor; that the petitioner is not acquainted in Ramsey county, and that he is well known not only in Renville county, but in McHenry county as well; that he was well known as a court reporter when Renville was a part of the Eighth judicial district, and was also a court reporter when McHenry was a part of such judicial district, and attended terms of court in those places for many years. To this return is appended the affidavit of the complaining witness to the effect that when she was 16 years old in the summer of 1918 the defendant had sexual intercourse with her at various times. At this hearing the defendant submitted an additional affidavit to the effect that at this time at Devils Lake, in Ramsey county, there exists a seething cauldron of political animosity; that the political feeling there was such during the political campaign that it did not subside through the election; that since this case was ordered transferred in such county there have been several arrests in that county arising out of the late campaign; and that such publicity and notoriety have been given by both sides of such political campaign, so as to make it less possible for such petitioner to have a fair trial in that county than was possible only a week ago. There is also attached an article showing that various complaints have been filed against the men arrested, charging criminal slander against some who have been opposed to the Nonpartisan League. In his petition the petitioner recites that he was indorsed by the Nonpartisan League and Organized Labor for district judge. In this connection the petitioner also presented another affidavit to the effect that conditions so exist in Devils Lake and Ramsey as to militate against a fair and impartial trial in such county; that such conditions arise from the late political campaign and the preceding primary campaign in which political issues were sharply drawn between those nominees known as Nonpartisan and those known as Anti-Nonpartisan; that Ramsey county is one of the strongest Anti-Nonpartisan League counties in the state; that the great preponderance of sentiment, and especially in the city of Devils Lake, is Anti-Nonpartisan, and that much bitterness exists because of such issues; that in McHenry and Renville counties, on the contrary, no such bitterness exists as this. No affidavits are filed by the defendants denying the matter contained in the affidavits of the petitioner presented in such hearing.

The proceedings for removal demanded by the petitioner have been under the provisions of article 5, §§ 10756 and 10768, of the Code of Criminal Procedure. These statutory provisions existed formerly when there was only one district judge for each judicial district. Under the new redistricting statutory act, there are now two or more judges for each judicial district. Chapter 167, Laws 1919. Under this act change of venue may be taken from one judge to another in the same district or in another district or from one county to another, or from one district to another, as is now or may hereafter be provided for by law. Section 7, c. 167, Laws 1919. Under the...