State v. Potter
| Decision Date | 05 December 1930 |
| Docket Number | 55 |
| Citation | 233 N.W. 650,60 N.D. 183 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of McLean County, Jansonius J.
Affirmed.
Alfred Zuger, Scott Cameron, and L. H. Connolly, for appellant.
Where the state asks a change of venue it must be made on the same terms as where the defendant asks the change. Zinn v District Ct. 17 N.D. 515, 114 N.W. 472.
The state is not as a matter of right entitled to a change of the place of trial in criminal cases; it is discretionary with the court; the discretion invoked is a legal discretion based upon evidence. State v. Winchester, 19 N.D. 756, 122 N.W. 1111. See also Re Nelson, 19 S.D. 214, 102 N.W. 885; People v. Powell, 87 Cal. 348, 25 P. 481.
Where a change of venue is ordered it is not required that the case must be sent to an adjoining county or judicial district. It must be sent to a county or judicial subdivision where the cause complained of does not exist. Murphy v. District Ct. 14 N.D. 542, 105 N.W. 728.
The state must have the same cause for asking a change of venue as the defendant. 4 Enc. Pl. & Pr. 401; Territory v Egan, 13 N.W. 568. See also People v. Burns (Mich.) 218 N.W. 704; People v. Swift (Mich.) 138 N.W. 662.
People v. Staples (Cal.) 86 P. 886.
"It is essential that the circumstances, taken as a whole, and given their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis (guilt)." Casey v. State (Neb.) 29 N.W. 264.
James Morris, Attorney General, John F. Sullivan, Special Assistant, and George S. Register, State's Attorney, for respondent.
While it is error to admit evidence not relevant at the time of its admission the error, if any, would not be available if the introduction of other evidence rendered the first evidence relevant. Katon v. State, 115 N.E. 229, 186 Ind. 167; Bridgeforth v. State, 74 So. 402; Lowman v. State (Ala.) 50 So. 43.
Where it is held that error in admitting evidence of acts of an alleged co-conspirator of accused before a conspiracy had been shown was not grounds for reversal, where evidence was subsequently admitted making the question of conspiracy one for the jury. Harmon v. State, 52 So. 348; State v. Moran (Iowa) 109 N.W. 187.
"The error in admitting evidence in chief is cured by evidence of accused rendering such evidence admissible in rebuttal." Russell v. State, 116 P. 451.
"The presumption is that the discretion of the trial court was properly exercised, and no matter from what source the court gets information to aid its discretion, when exercised, it must be regarded as properly done in the interests of justice." Murphy v. District Ct. 105 N.W. 728.
"At common law, the right of trial by jury at the county of the offense was a general one, not unconditional, but always subject to the exception that the indictment might be removed and the trial take place in another county, either upon the application of the prosecution or the defendant, when necessary to secure a fair and impartial trial." Barry v. Truax, 99 N.W. 769.
This case was first tried in Burleigh county, and the jury failing to agree, the case was thereafter, on the application of the state transferred to McLean county, where after a trial the defendant was convicted of murder in the first degree.
A motion for a new trial was made upon specifications of error, and on the denial of said motion, the defendant appeals from the judgment of conviction, and from the order denying the motion for a new trial. In the specifications of error on appeal, appellant raises one question of error not specified or raised in the motion for a new trial, nor at any time in the proceedings until it is raised on appeal, viz., "That the court erred in granting a change of venue to McLean county, for the reason, that the state failed to make a proper showing to the effect that a fair and impartial jury could not be secured in the county of Burleigh; that the affidavits submitted by the state were to the effect that it was impossible to obtain a jury in the fourth judicial district, being the district in which the county of McLean is located." The affidavits on the part of the state with one exception, do allege that it is impossible to obtain a jury in the fourth judicial district, and McLean county is in the fourth judicial district, but all the affidavits refer more specifically to Burleigh county, and to the city of Bismarck, the county and city in which the defendant and Oliver Webb, the deceased, lived for many years and in which they were well known. In the affidavit of the state's attorney that part specifying the fourth judicial district is stricken out; otherwise, it is the same as the other affidavits filed on the part of the state. All the affidavits for the state allege in substance, that the defendant, Ray Potter, and the deceased Oliver Webb were residents of Burleigh county for many years, were personally and widely acquainted with a great number of persons residing in Burleigh county who are subject to call as jurors; that since the date of the killing a keen public interest has been taken in the facts and circumstances, and the public interest in said killing has been evidenced by general conversations and expressions of opinion as to the guilt or innocence of the defendant, almost continuously since said killing and up to the date hereof; that in the December, 1928, term of the district court of Burleigh county, said defendant was tried and during the trial of said action which consumed, with adjournments, several weeks, the public interest was further inspired and accentuated by the daily newspapers at Bismarck and Mandan, both of which papers have a very wide circulation, and which said papers carried daily, as leading articles, supplemented with large headlines the report of the trial, the evidence, and all the facts and circumstances surrounding the same; that the wide dissemination of information concerning the killing and the testimony produced at the former trial the newspaper discussion of the case, the public interest it has inspired and the general discussion of said matter is such that this affiant verily believes that it would be impossible to obtain a jury in Burleigh county that had not formed an opinion as to the guilt or innocence of the defendant, such as would disqualify them as jurors, and this affiant states to the court under oath that in his judgment the ends of justice demand that the place of trial be changed from Burleigh county to some other county in the state of North Dakota where the cause for change complained of does not exist.
The counter affidavit of Scott Cameron, attorney for the defendant, states in substance "that he is informed and believes, that the persons who signed affidavits in support of the application, are all residents of the city of Bismarck, who are personally acquainted with the deceased his relatives and the defendant, and that said affidavits do not truly express the state of mind of the majority of the prospective jurors in said county; that the story of the trial was published generally through the medium of the associated press news service, was contained in all of the daily papers published in the state of North Dakota and of Minneapolis and St. Paul, and the objection raised to a trial in Burleigh county could be made with practically the same showing in any other county in the state, that at the first trial a jury was secured without exhausting the peremptory challenges of either party." This is followed by a large number of affidavits to the effect that a fair trial could be had in Burleigh county. The affidavits for both the state and the defendant are largely conclusions, but no objection was made to them upon that ground. Apparently, appellant was of the opinion that the affidavits for the state made a prima facie showing for a change of place of trial. This is apparent from the affidavit of the attorney for the defendant to the effect, "that the affidavits of the state do not truly express the state of mind of the majority of the prospective jurors in said county." The inference is, that if the affidavits of the state did truly express the state of mind of the majority of the prospective jurors in said county, that the state would be entitled to a change, but the state is not entitled to a change, for the reason, that these affidavits do not express the true state of mind of the prospective jurors. He therefore asked for time to secure other affidavits stating, "that the defendant has not had an opportunity to interview taxpayers residing in Burleigh county, outside of the city of Bismarck, and believes that if the court so desires, affidavits similar to those attached hereto can be obtained from an unlimited number of responsible taxpayers in Burleigh county." Time was given to the appellant until the fourth of June, and upon that date he filed additional affidavits all to the same effect that the defendant could have a fair trial in Burleigh county. These affidavits of the state and the counter affidavit of the defendant were all submitted to the court, and without any objection upon the part of anyone as to their sufficiency, and upon the theory that if the affidavits of the state were true...
To continue reading
Request your trial