State v. Duffy

• Decision Date: 17 June 1935
• Docket Number: Cr. File 115
• Citation: State v. Duffy, 65 N.D. 671, 261 N.W. 661 (N.D. 1935)
• Court: North Dakota Supreme Court

261 N.W. 661

65 N.D. 671

STATE OF NORTH DAKOTA, Respondent, v. J. G. DUFFY, Appellant

Cr. File No. 115

Supreme Court of North Dakota

June 17, 1935

Syllabus by the Court.

1. While an order changing the venue in a criminal action is nonappealable, such order may be reviewed on appeal from the judgment.

2. On the record in this case, it is held that the order transferring the trial of this case from Mountrail county to Ward county was erroneously made, and that the district court of Ward county never obtained jurisdiction to try the case.

Appeal from District Court, Ward County; John C. Lowe, Judge.

J. G Duffy was convicted of embezzlement, and he appeals.

Judgment reversed, and cause remanded, with directions.

P O. Sathre, Attorney General, and E. J McIlraith, State's Attorney, for respondent.

E. R. Sinkler, G. O. Brekke, and Olaf Braatelien, for appellant.

Burr, J. Burke, Ch. J., and Christianson, Morris and Nuessle, JJ., concur.

OPINION

BURR

Defendant was convicted of embezzlement and on January 19, 1934, was sentenced to imprisonment in the state penitentiary. The appeal to this court is "from that certain judgment of conviction" and "from that certain order transferring the said above entitled action to trial from Mountrail county, North Dakota to Ward county, North Dakota, and that the said defendant appeals from the whole of said judgment and order and all and every part thereof."

Respondent moves to dismiss the appeal on the ground that "the defendant appealed to the Supreme Court of this state, ostensibly from said judgment but actually from a certain order from the district court changing the venue. . . ." It is true, as stated by respondent, that "an order made by the district court changing the venue in a criminal action is a nonappealable order." State v. Fortune, 29 N.D. 289, 150 N.W. 926. But upon an appeal from the judgment the order may be reviewed. See § 11,014 Compiled Laws.

On this appeal from the judgment the only issue involved is the question of the change of venue granted the state.

The defendant was informed against in Divide county, but upon his filing of an "affidavit of prejudice and for change of venue" this court designated the Hon. John C. Lowe as presiding judge and the case was transferred to Mountrail county. Mr. Braatelien appeared as counsel for the defendant. On December 7, 1933 the jury disagreed.

On December 16, 1933 the State's Attorney of Divide county filed with the trial judge an application for change of venue from Mountrail county. No service of this application was made upon the defendant. An alleged service was made upon his counsel by mailing to him a notice on December 22, 1933 to the effect that this application would be heard before the presiding judge at Minot in Ward county on December 26, 1933. The presiding judge adjourned this hearing until December 28. On that date neither the defendant nor his counsel appeared in opposition to the application and the court made and entered an order changing the place of trial from Mountrail county to Ward county, setting the case for trial on Tuesday January 2, 1934.

On January 2, 1934 counsel for defendant wrote to the trial judge protesting against the trial in Ward county and insisting that the case was still pending in Mountrail county. On the next day the defendant wrote to the trial court to the same effect and stated he had made no arrangements with his counsel to continue his service and could not pay counsel nor witnesses. On January 5 the counsel wrote the trial judge to the effect that he could not appear for the defendant as the defendant was unable to pay him. By letters the court notified the defendant and his counsel that the case was set for trial on January 11 at 9:30. A.M., and by letter notified the defendant that upon proper application counsel would be appointed and witnesses subpoenaed on his behalf. This was the situation up to the time subsequent proceedings were had in the district court of Ward county. A mere statement of these facts is sufficient to show that the rights of the defendant were totally disregarded.

It is the claim of the appellant that the state could not make its application for change of venue except during the session of the district court of Mountrail county when the case was called for trial.

Under § 10,768 of the Compiled Laws the state has a right to apply for a change of venue on the same grounds as the defendant and if the court be satisfied that it will promote the ends of justice it "may order such removal on the same terms and to the same extent," as permitted the defendant. Section 10,757 provides that the petition for change of venue "must be presented at the first term of the court at which the action can be tried and before the trial is begun, or, if the action has been continued at any time before the term to which it is continued, upon reasonable notice to the state's attorney or the attorney appointed to prosecute." This provision controls the application made by the state. The case had been presented to a jury, but no verdict rendered. It is clear from the record that the case was continued until the next term of the district court of Mountrail county.

No service of the application for change of venue was made upon defendant either personally or by mail. We need not consider whether the trial court had the right to hear such application after the adjournment of the term and while outside of Mountrail county. The court is unanimous in its decision that the application for change of venue should not have been granted under the circumstances of this case and that the change of trial from Mountrail county to Ward county was erroneous.

The trial was had in Ward county. The defendant filed protests and objections hereafter noted, which objections were overruled. The defendant offered no testimony; but upon trial was convicted and sentenced to serve a term in the penitentiary. The defendant appealed from the judgment and "from the order transferring the case from Mountrail county to Ward county and order denying the application for change of judges and change of venue from Ward county."

The specifications of error as follows: I. "The court erred in making the order transferring said action from Mountrail county to Ward county on the ground that no petition for such change was ever filed in the office of the clerk of the district court of Mountrail county, and that no notice of the application for such change was ever given to the said defendant, and that the said defendant was never at any time notified of such application, and had no notice of the change until the time the district court met at Ward county, and that said order of removal was made ex parte, and was not made in conformity with the statute in such case made and provided.

II. "The court erred in overruling the defendant's objection to the jurisdiction of the court to try said action in Ward county on the ground and for the reason that the order of removal was made ex parte without notice to the defendant and is in contravention of his constitutional rights as provided in paragraph 13 of the Constitution of the state of North Dakota, and that the said defendant did not have nor was he granted the opportunity to appear and defend in person and with counsel, and was not given the right to resist such application for change of venue; that the said action is still pending in the county of Mountrail and that said action has never been legally removed from said Mountrail county.

III. "The court erred in denying the defendant's application for a change of Judges and for a change of the place of trial from Ward county, North Dakota, on the grounds that the prejudice of the said John C. Lowe was conclusively established, and that the right to a change of the place of trial from Ward county was conclusively established, there being no affidavit filed or presented to the court resisting the said application.

IV. "The court erred in calling a jury to try the said defendant in Ward county, North Dakota, on the ground that the case was still pending in Mountrail county, North Dakota, and the same had not been removed to Ward county, and the said court of Ward county had no jurisdiction thereof.

V. "The verdict of the jury in finding the defendant guilty was and is void and of no force or effect because of lack of jurisdiction as hereinbefore set forth.

VI. "The court erred in imposing sentence on the defendant on the ground and for the reason that the court had no jurisdiction of said action, and that the said action is still pending in Mountrail county.

VII. "The court erred in entering judgment against the defendant in said action on the grounds that same was entered without jurisdiction."

The record shows that on January 8, 1934, the defendant made an affidavit, entered in the district court of Ward county, wherein he states he makes this application to the district court of Ward county and asks that witnesses on his behalf be subpoenaed for the trial in the district Court of Ward county at the expense of Divide county, and asks for the appointment of Mr. Braatelien for his counsel. The following day the district court of Ward county made an order for defendant's witnesses to appear at the expense of the county of Divide and appointing Mr. Braatelien counsel for the defendant. On the same day the defendant filed a lengthy affidavit setting forth that this action was commenced in Divide county, that the place of trial had been changed to Mountrail county and:

"That defendant is now informed that said action has by said Hon Jno. C. Lowe been ordered removed for trial to Ward county in the Fifth Judicial District of the State of North Dakota, and that it is set for trial at Minot,...