Booren v. McWilliams

157 N.W. 117 | N.D. | 1916

Bruce, J.

(after stating the facts as above). The question to be determined in this case is whether the trial court committed an abuse of its discretion in refusing a change of venue under the provisions of the statute (Comp. Laws 1913, § 7418) which permits such a change “if there is reason to believe that an impartial trial cannot be had” in the county. We are satisfied that no such abuse of discretion occurred. It is, of course, well established that the matter is discretionary with the trial court, and that such discretion will not be reviewed or interfered with unless there .has been a manifest abuse thereof, and that the-burden of proof is upon the movent and appellant to make this fact apparent to the appellate court. Croft v. Chicago, R. I. & P. R. Co. 134 Iowa, 411, 109 N. W. 725; 40 Cyc. 165; 4 Standard Enc. Proc. p. 40; State v. Gordon, 32 N. D. 31, 155 N. W. 59; Power v. People, 17 Colo. 178, 28 Pac. 1121; Michael v. Mills, 22 Colo. 439, 45 Pac. 429; Gibbert v. Washington Water Power Co. 19 Idaho, 637, 115 Pac. 924; Horton v. Haines, 23 Okla. 878, 102 Pac. 124.

“The reason for this rule is obvious. Whether a change of venue is necessary to obtain a fair and impartial trial is not a question of law, but of fact. A judge on the spot, viewing all the circumstances, and having knowledge of persons, facts, and influences, is much better qualified than is an appellate court at a distance, with only ex patrieaffidavits before it to determine the fact whether or not it is true that the defendant cannot have a fair trial by an impartial jury in the county in- which he is indicted or in which the plaintiff has commenced his suit.” 4 Enc. Pl. & Pr. 499-502.

Generally the courts hold that no abuse of discretion will be presumed or inferred where there are conflicting affidavits. Generally the rule seems to be that the fact that a number of persons in any particular county have a bias or prejudice against the defendant will not justify a change cf venue against the objections of the adverse party, if, notwithstanding the bias or prejudice' of such persons, a fair and impartial trial can be had in that county, and this matter is primarily for the trial court to determine. Northeastern Nebraska R. Co. v. Frazier, 25 Neb. 42, 40 N. W. 605; State v. Gordon, 32 N. D. 31, 155 N. W. 59. In the case at bar, it is true that there are a number of affidavits which claim that the defendant cannot have a fair trial in the county. The counter affidavits, however, show that only some 150 persons were present at the former trial. They deny that the matter has created general excitement throughout the county as a whole. They deny that prejudice extends throughout the county. They call attenfion to the fact that as far as the anti-Catholic papers are concerned, their publication is just as extensive in the other counties of North Dakota as in Towner county. They are signed by persons from all ■over the county. Some of the signers axe persons who are peculiarly qualified to know the facts, being the mayor and marshal of Cando, two ■of the county commissioners, and the sheriff. All these matters were peculiarly within the knowledge of the district judge, and were competent for bim to consider. We are not inclined to interfere with his discretion and judgment in the matter, or to hold that the showing was made that a fair trial could not be obtained.

The order of the District Court is affirmed.-