Murphy v. Dist. Court of Eighth Judicial Dist.

• Citation: 105 N.W. 728,14 N.D. 542
• Parties: MURPHY v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.
• Decision Date: 20 November 1905
• Court: United States State Supreme Court of North Dakota

14 N.D. 542

105 N.W. 728

MURPHY

v.DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.

Supreme Court of North Dakota.

Nov. 20, 1905.

Syllabus by the Court.

Under the statutes of the state regulating changes of place of trial in criminal cases upon defendant's application, because of prejudice which precludes a fair and impartial trial in the county where the indictment or information is laid, the presiding judge is not limited, in selecting a place for trial, to adjoining counties or judicial districts. The single statutory requirement is that he shall send the case “where the cause complained of does not exist.”

When a change of place of trial is obtained by a defendant because of local prejudice, the duty of selecting the place for trial rests exclusively upon the presiding judge, in the exercise of a sound judicial discretion.

When a change has been granted, and another county selected, it will be presumed that the discretion of the presiding judge was exercised properly, and the burden is upon one attacking his order to show affirmatively a manifest case of abuse; and this court will not, under its superintending power over inferior courts, revise his order, in the absence of such a showing, and in no case will it substitute and enforce its discretion as against the discretion of the presiding judge.

The defendant, who stands charged with the crime of forgery in the third degree in the district court of Ward county, applied for a change of place of trial and of judges, because of local prejudice and prejudice of the presiding judge, and requested a speedy trial. A change was granted to Cass county, and the judge of that district was designated as the judge to preside at the trial. After the order was made the defendant objected upon two grounds: (1) Because the case was not sent to an adjoining or neighboring county; and (2) because of the added expense of taking witnesses to Cass county. It is shown that a speedier trial could be had in Cass county than elsewhere, and it is conceded in this court that the court's action was proper in not selecting an adjoining county, and it is also conceded that a fair and impartial trial is assured in Cass county and before an unprejudiced judge, and it is not claimed or shown that the defendant will be prejudiced in making his defense. It is held, upon defendant's application for a writ of certiorari to review said order, that these facts and those set out in the opinion do not show an abuse of discretion by the presiding judge such as will warrant the exercise of the superintending jurisdiction of this court; and the writ is therefore denied.

Application by John S. Murphy for writ of certiorari to the district court of the Eighth judicial district and E. B. Goss, judge. Writ denied.

Engerud, J., dissenting in part.W. S. Lauder and Palda & Burke, for plaintiff. Green & McGee, for defendants.

YOUNG, J.

This is an application for a writ of certiorari on behalf of one J. S. Murphy, the defendant in State v. Murphy. On July 28, 1905, an information was filed in the district court of Ward county, charging the defendant with the crime of forgery in the third degree. On August 7, 1905, the defendant moved for a change of place of trial, and for a change of judges to sit at the trial of the action. The motion was based upon the defendant's affidavit, which alleged in substance that he could not have a fair and impartial trial in Ward county because of the prejudice of the officials of that county, and because of local prejudice which made it impossible to obtain jurors who had not formed an opinion of the guilt or innocence of the defendant, and that the presiding judge was prejudiced and biased against the defendant. The motion was granted, and the place of trial was changed from Ward county, in the Eighth judicial district, to Cass county, in the Third judicial district, and the judge of that district was designated as the judge to preside at the trial. The record shows that the defendant “objected and excepted to that portion of the order in which the place of trial is changed to Cass county, * * * it being 283 miles from the county seat of Ward county to the county seat of Cass county by the usual route of travel, and that there is no reason shown why a fair and impartial trial of said action cannot be had at any of the counties adjoining or near to the said county of Ward, and that no reason is shown why the defendant should be put to the great and extraordinary expense of traveling, with his witnesses, 283 miles from his home to defend the action.” Thereafter and on August 30, 1905, the defendant, upon his affidavit setting forth the facts and proceedings above stated, procured an order from a judge of this court, directed to the presidingjudge of the Eighth judicial district, commanding him to show cause before this court on September 20, 1905, “why an appropriate writ should not be issued from this court, requiring and commanding him to transmit to this court all the pleadings and records, and all the records of the proceedings had in said criminal action that right and justice may be done therein.” On the return day a verified answer to the order to show cause was filed on behalf of the judge of the Eighth judicial district, which states the reasons for his action, and, among other things, contains a copy of the defendant's affidavit upon which the order complained of was made. The hearing in this court upon the application for the writ prayed for was upon the defendant's moving affidavit and the verified answer. The question involved is whether the facts presented show that the presiding judge exceeded his jurisdiction in sending the case to Cass county. If they do, the writ should be granted; otherwise, it must be denied. The consideration of this question will require a reference to the sections of the statute authorizing and regulating changes of place of trial and judges in criminal cases. So far as material, they are as follows (Rev. Codes 1899):

Section 8110: “The defendant in a criminal action * * * may be awarded a change of the place of trial, upon his petition upon oath * * * that he has reason to believe, and does believe, and the facts upon which such belief is based, that he cannot receive a fair and impartial trial in the county or judicial subdivision where said action is pending, upon any of the following grounds”-which are four in number: (1) Undue influence of the state's attorney or person promoting the prosecution over the minds of the people of the county; (2) prejudice of the people against the defendant or the offense; (3) impossibility to obtain an impartial jury; (4) any other cause which would probably deprive the defendant of a fair trial.

Section 8112: “The court being satisfied that cause exists therefor, as defined in section 8110, must order a change of the place of trial to some county or judicial subdivision where the cause complained of does not exist. * * *”

Section 8120: “Whenever the defendant * * * shall file his affidavit stating that he has good reason to believe and does believe that he cannot have a fair and impartial trial of such action on account of the prejudice of the judge of the district court in which said action is pending, the court shall thereafter proceed in said action as follows: (1) If the defendant * * * asks for a change of the place of trial of said action on any of the grounds specified in section 8110 of this Code [local prejudice], and also for the cause mentioned in this section [prejudice of the judge], it shall be the duty of the court to order said action moved for trial to some other county or judicial subdivision in this state, as provided in this article, and to request, arrange for and procure some other judge than the one objected to, to preside at the trial of said action; or (2) if a change is asked for only on account of the cause mentioned in this section [prejudice of the judge] the court in which said order is pending may order said action removed to a county or judicial subdivision in an adjoining judicial district in which it can be conveniently and expeditiously tried before another judge, or may request, arrange for and procure the judge of another judicial subdivision to preside at the trial in the county or judicial subdivision in which the action is pending. * * *”

It will be observed that when a change of place of trial is made because of local prejudice, under section 8110, supra, or because of local prejudice and the prejudice of the presiding judge combined, as in this case, under subdivision 1 of section 8120, the presiding judge is not restricted as to the county or judicial district to which he may send it. Subdivision 1 of section 8120 states that “it shall be the duty of the court to order said action removed for trial to some other county or judicial subdivision in this state, as provided in this article, and to arrange for and procure some other judge than the one objected to, to preside at the trial of said action”; and section 8112 provides that, when the court is satisfied that the cause authorizing the change under section 8110 (local prejudice) exists, it “must order a change of the place of trial to some county or judicial subdivision where the cause complained of does not exist.” Subdivision 2 of section 8120, supra, relates solely to the court's duty when the affidavit of prejudice is directed to the presiding judge alone. The court may, in such cases, call in another judge, or send the case to some county in “an adjoining district,” where it can be “conveniently and expeditiously tried before another judge.” Where a case is sent to another county under this subdivision (prejudice of the judge), it is purely for convenience, and this fact amply justifies the provisions limiting the change to a county in an adjoining district. Where, however, the change is for local prejudice, the statute places no limitation upon the court's action further than...