State v. Phillips

• Decision Date: 15 January 1938
• Citation: 277 N.W. 609,68 N.D. 113
• Parties: STATE v. PHILLIPS.
• Court: North Dakota Supreme Court

68 N.D. 113

277 N.W. 609

STATE

v.PHILLIPS.

Supreme Court of North Dakota.

Cr. 143.

Jan. 15, 1938.

Syllabus by the Court.

1. When an affidavit for change of judges is filed in a criminal action and the applicant also asks for a change of the place of trial, the judge designated by the Supreme Court to act in said action has power to reject the application for change of place of trial as well as to determine the county to which the case is sent for trial in event the application is granted. Chapter 215, Session Laws of North Dakota for 1927.

2. Whether a change of place of trial should be granted rests within the sound judicial discretion of the trial court, and, in the absence of an abuse of such discretion, the denial of the application is not error.

3. In homicide cases, evidence of statements made or acts done by the deceased which tend to show the existence of a design or plan to do a specific act on the part of the deceased is admissible when the design, or plan, and the act of the deceased sought to be shown, is relevant to the issue being tried.

4. Statements of the deceased not a part of her dying declarations and not shown to have been made in furtherance of a conspiracy, purporting to repeat conversations with the defendant, are hearsay coming within no exceptions of the hearsay rule, and are inadmissible.

5. The admissibility of dying declarations depends upon whether the declarant is conscious of the approach of what she then believes to be speedy and certain dissolution, and possesses intelligence, consciousness, and memory sufficient to know what she is saying and doing, and to understand clearly the import of what is said to her.

6. The question of admissibility of a dying declaration is primarily for the trial court to determine from the surrounding circumstances and the express language of the declarant.

7. It was error for the trial court to instruct the jury that evidence of statements of the deceased bearing upon her design or plan to have an abortion performed may be considered “for the purpose of showing that the abortion was probably done as planned.”

8. Where the court has given a general charge on credibility, it is not error to refuse a special instruction on the credibility of the statements of the deceased, although the giving of such an instruction would not be improper.

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

J. M. Phillips was convicted of second degree murder, and he appeals.

Judgment reversed, and new trial ordered.

BURR, J., dissenting.

F. T. Cuthbert, of Devils Lake, and C. E. Joseph, of Bisbee, for appellant.

P. O. Sathre, Atty. Gen., and J. J. Kehoe, State's Atty., of Cando, for the State.

MORRIS, Judge.

This case comes to us on appeal from a judgment of conviction of the defendant for second degree murder. The first question to be considered involves the place of trial. The information charged the commission of the crime in Towner county. Affidavits of prejudice against both the judge and county were filed. The Supreme Court designated a trial judge who heard the defendant's application for change of place of trial and denied it. The trial was had in Towner county over the objection of the defendant.

The law under which the trial court acted is chapter 215, Session Laws of North Dakota for 1927, and reads as follows:

“That Section 10766 of the Compiled Laws of North Dakota for the year 1913, be amended and re-enacted to read as follows:

§ 10766. Whenever an affidavit for a change of judges is filed in a criminal action, in accordance with the provisions of Chapter 331 of the 1923 Session Laws, and the party also asks for a change of the place of trial, upon any ground specified in Section 10756 of the Compiled Laws of North Dakota for the year 1913, the Court shall proceed no further in the action, and shall thereupon be disqualified to do any further act in said cause; and in such case, the application for a change of place of trial shall be heard and determined by the Judge designated by the Supreme Court to act in said action; provided that such affidavit shall be filed in duplicate not less than five days before the opening day of the term at which such action may be tried, except in cases where the defendant is held to the District Court for trial after said time.”

[1] The defendant contends that under section 10766, Compiled Laws of North Dakota for 1913, “a double affidavit charging prejudice of the court and the county was mandatory, and required the removal of the cause to some other county and the hearing of the case by some other judge,” and that this is still the law despite chapter 215, supra. The trial court was of the opinion that since the enactment of chapter 215, the filing of the double affidavit no longer made the change of place of trial mandatory, and that the trial judge appointed by the Supreme Court might, upon hearing an application for change of place of trial, deny such application and grant no change, or grant the application and designate the county to which the case should be transferred for trial. Some confusion has developed regarding the change of place of trial as between civil and criminal actions due to the enactment of chapter 1, Session Laws of 1919, chapter 129, Session Laws of 1921, and chapter 331, Session Laws of 1923. These enactments are discussed at considerable length in State v. Craig, 54 N.D. 5, 208 N.W. 394, 396. It is unnecessary to discuss them here, for as was said in State v. Craig, supra, “Considering the entire content of the acts of 1919, 1921, and 1923, we deem it to be reasonably clear that the Legislature dealt only with affidavits of prejudice against the judge who would otherwise preside at the trial and not with affidavits filed for the double purpose of securing a change of judge and a change of the place of trial. Such has been the uniform construction of these statutes by this court whenever called upon to designate judges following the filing of affidavits of prejudice.”

Thus the provision of section 10766, Compiled Laws of 1913, making it the mandatory duty of the court to order an action removed for trial to some other county when an affidavit of prejudice was filed against both the judge and the county remained the law of this state until the enactment of chapter 215, Session Laws of North Dakota for 1927. The defendant contends that the sole purpose of this last enactment was to prevent a trial judge, against whom an affidavit of prejudice had been filed, from designating the county to which the case should be sent for trial, and to require the new judge designated by the Supreme Court to determine to which county the case should be transferred, and that the new act did not confer upon the judge designated by the Supreme Court authority to deny the application for change in toto. Under section 10766, Compiled Laws of North Dakota for 1913 and until the enactment of chapter 215, supra, when an affidavit was filed against both the judge and the county, the judge against whom the affidavit was filed heard the application for removal, but was not permitted to deny it. His only discretion lay in designating the county to which removal was had. The 1927 act took the judge against whom an affidavit of prejudice had been filed completely out of the case. He was disqualified to do any further act, and it was specifically provided, “the application for a change of place of trial shall be heard and determined by the Judge designated by the Supreme Court to act in such action.” Had the Legislature intended to make a change of place of trial mandatory under the 1927 act, it could easily have so provided as it had done in section 10766. The omission of mandatory language is an indication of an intention on the part of the Legislature to vest in the judge, designated to act in the place of the one disqualified, authority to hear and determine the application with respect to two essentials; first, whether a change of place of trial should be granted at all, and, second, if a change was granted, to what county the case should be transferred.

[2] Whether a change of place of trial should be granted rests within the sound judicial discretion of the trial court, and, in the absence of a showing of abuse of such discretion, the denial of the application is not error. State v. Winchester, 19 N.D. 756, 122 N.W. 1111;State v. Potter, 60 N.D. 183, 233 N.W. 650. No question of abuse of discretion is here presented.

The defendant argues that chapter 215, Session Laws of 1927, does not specifically repeal the law as it existed under section 10766, Compiled Laws of 1913, making an affidavit of prejudice filed against both the presiding judge and the county mandatory in requiring a removal of the trial of the case from the county against which prejudice was allowed, and that since repeals by implication are not favored, the law in that respect stands unchanged. The rule regarding repeals by implication does not apply in this case. Section 10766 is specifically amended and re-enacted by the 1927 law. The exact field which was covered by the provision in the old law making removal from the county mandatory is covered by the new act in this language: “The application for a change of place of trial shall be heard and determined by the Judge designated * * * to act in said action.” We construe this language to mean that the judge has power to grant or reject the application as well as to determine the county to which the case should be sent for trial in event the application is granted. “The power to hear and determine, includes power to reject as well as to allow.” Cole v. State, 102 N.Y. 48, 6 N.E. 277, 278.

The State seeks to prove that the defendant unlawfully produced a miscarriage of one Muriel Samski, resulting in her death on October 31, 1935. The deceased lived in Dunseith, N. D. The defendant resided and practiced medicine at Bisbee. The defendant contends that the court erred in...