105 N.W. 728 | N.D. | 1905
Lead Opinion
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 Wai'd county, charging the defendant with the crime of forgery in the third degree. On August ¶, 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 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 “obj ected 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, directing the presiding judge of the Eighth judicial district, commanding him to show cause before
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; (3) 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 8113: “The court being satisfied that cause exists therefor, as defined in section 8110, must order a change of the place of trial ito some county or judicial subdivision where the cause complained of does not exist. * * *”
Section 8130: “Whenever the defendant * * * shall file his affidavit stating that he lias 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
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 the requirement to select a county “where the cause complained of does not exist.”
The question, therefore, is, not what -county would the defendant select, mor what choice would our discretion dictate, but is whether or not the presiding judge exceeded the discretion committed to him in sending the case to Cass county. The superintending control over inferior courts- — that is, the power to keep them “within bounds” — -which is vested in this court by the state constitution, ■does mot authorize us to substitute our discretion for that of the tribunals whose acts we superintend. This was well expressed by the Supreme Court of Michigan in T. & W. Co. v. Circuit Judge, 75 Mich. 360, 371, 42 N. W. 968, in which- that -court said: “It is true that the constitution has given this court a general superintending -control over -all inferior courts, but in the exercise of this jurisdiction it -has never been claimed that this court can substi
Tested by the foregoing rules, which are well settled, the majority of this court are of opinion that the defendant has not shown adequate cause for the exercise of our superintending jurisdiction. It is admitted that Cass county is free from the prejudice from which the defendant wished to escape when he applied fpr a change of venue, and it is not claimed nor suggested that the judge of the Third judicial district is in any respect prejudiced. The purpose for which the change was taken .concededly has been accomplished by -the selection of a county “where the cause complained of does not exist.” The only objections- urged against the court’s action are (1) that it has not been shown “why a fair and impartial trial cannot be had at any of the counties adjoining or near to Ward county;” and (-2) the additional expense which the -defendant will incur traveling with 'his witnesses to 'Cass county.
The first objection is perhaps sufficiently answered by the mere statement that the presiding judge, who was charged with the duty of selecting a place of trial, selected 'Cass county, and the
It will be seen that this affidavit presents a case of more than mere local prejudice. The prejudice of which the defendant complains is both personal and political, one growing entirely out of his political leadership, existing within and without Ward county, and of a more violent character; and' he -charges that this prosecution is purely for political purposes. That a bitter factional difference exists in Ward county, which involves the personal character and reputation of this defendant, is admitted' by the answer; and it is also admitted that practically the same condition exists in
Of the .several reasons stated in the answer for the selection of Cass county in preference to other counties or judicial districts, we shall refer only to the following: It is alleged that: “Upon the motion for a change of place of trial being made by the defendant in said information, it was urged by counsel for said defendant that they were anxious for a speedy trial and disposition of said cause, and that the district court of said Ward county and tire judge thereof regarded it as proper to change the place of trial to such county as would insure an expeditious trial upon said information; that at the time of making said order, changing • the place of trial of said cause to Cass county in the Third judicial district, a term of the district court of said Cass county was then just opening, at which term it 'appeared to said district court of Ward county the issue upon said information could be tried, thus insuring a fair and expeditious trial of said cause; that at the. time of making said' motion for 'change of place of trial no presentation of facts was made by the defendant or his counsel with reference
It was important tirat the court, in selecting the place of trial, should take into consideration the defendant’s request for a speedy trial as well as a fair and impartial trial. It was important to the state as well as to the defendant. The defendant urged his desire for a speedy trial, and in doing so he was asserting a constitutional right. Section 13, state constitution. In deciding where such a trial could be had it must, we think, be admitted that one county could be preferable to another in the same judicial district, or one judicial district to another, for the purpose of securing it. The presiding judge was in a position to know of the conditions in the other counties and judicial district. A speedy trial was assured in Cass county, and it is not shown or claimed that as .speedy a trial could have 'been had elsewhere. This reason alone, in the 'Opinion of the majority, shows that ithe presiding judge did' not abuse his discretion.
Tire objection based upon the expense added by the change to Cass county, whatever it may be, does not merit serious consideration. The defendant deliberately elected to forego' a trial by a jury of the vicinage because of the alleged prejudice against him, and thus cast upon the presiding judge the duty of selecting some
Dissenting Opinion
(dissenting). I am unable to concur in the conclusions reached by my associates in the foregoing opinion. I shall state my reasons for dissent as briefly as possible. I agree with my associates that when the defendant, in a criminal case, demands and proves his right to a change of venue by reason of tiie bias and prejudice of the judge and inhabitants of the county where the case arose, neither the defendant nor the prosecution has any constitutional or statutory right to name the county to which the action shall be sent, but that the selection of the county wherein to try the case is committed to the discretion of the district judge. I concede that in selecting the county to which to send the case the judge may act upon facts within his personal knowledge, as well as upon proof offered by the parties. In the absence of any showing to the contrary, it must be presumed that the discretion was properly exercised. This presumption in favor of the action of the trial court may be overcome, however. To hold otherwise is to vest the district judge with unlimited arbitrary power (which is synonymous with caprice) to' send a case to any county in the state, however remote from the county where the crime is alleged to have been committed. The presumption in this instance in favor of the propriety and regularity of the rulings of the district judge is in no respect different in kind or degree from the presumption which prevails with respect to the decision of that court in any other discretionary matter. The decision is presumed to be right until the contrary is made to appear. If it is made to appear in an appropriate proceeding before the Supreme Court that the discretion of the district judge has been erroneously exercised or abused, the erroneous decision or order should be set aside or corrected, whether.it occurs on a motion to change the venue or in any other proceeding before the lower court. This must be so because the discretion of the lower court with respect to the selection of a county to which to send the case is a judicial, not an arbitrary discretion, and, being judicial, must be reasonably exercised with due regard to 'the rights of the parties, and must be justified by the facts upon which the decision was based. This is a proceeding which directly challenges the propriety of the order for a change
The inquiry then is: Do the facts disclosed justify the decision? So, in this case, the district court was required by the order to show cause to disclose to this court all the facts which were before it, and upon which it relied, as a reason for selecting so remote a place for trial as Cass county, instead of some one of the several nearer counties. In obedience to the order the lovyer court has set forth in the return all the facts which it asserts warranted its decision. The question before this court is: Do the facts set forth in the return warrant the selection of Cass county in preference to some nearer county. I am very clearly of the opinion that the facts stated in the return were utterly insufficient to justify the selection of Cass county, and disclose a clear case of abuse of discretion. It seems to me too plain for argument that, when a change of venue becomes necessary by reason of local prejudice, the district court cannot rightfully send the case for trial to a place more remote than is necessary to secure a fair and impartial trial. The disadvantages of a trial far remote from the scene of the alleged crime are obvious. It is not merely a matter of expense, although that is an important item. Every lawyer of experience knows how often during the progress of a trial some unforeseen emergency may arise which renders it imperative to get additional testimony to refute or corroborate some other testimony which
I maintain that the presumption is that a fair and impartial trial cair be had in any county in the state until the contrary appears. That being so, it was the duty of the court to select the nearest and most accessible county to Ward county, unless some valid objection to the selection of that county existed. The presumption being that a fair and impartial trial could be had in any other county than Ward, it is clear that the burden was on him- who asserts the contrary to overcome the presumption. Hence the question in this case is: Do the facts disclosed in the return furnish a valid reason for passing by the several counties near to Ward and selecting a place of trial 284 miles away? In my opinion, if the facts disclosed ¡by the return do not show a sufficient reason for passing over near-by counties, then it was an abuse of discretion to select a remote county in preference to a near one. The nature of the showing of local prejudice was such that it gave good grounds to claim that the prejudice extended to all the counties in the Eighth judicial district, and the district judge states in his return facts within his own knowledge which it may be assumed show that a fair and impartial trial could not be had in the Second judicial district, which, until quite recently, included the counties now constituting the Eighth judicial district. The only reason assigned for not selecting some county in the Fifth district, where the county seat is on the main line of the Minneapolis, Saint Paul &
It seems unreasonable to me to assume that the political strife which created the prejudice against defendant in his county and judicial district had become so widespread and general as to taint with prejudice any appreciable portion of the inhabitants of other districts not affected by the questions which created the strife in Ward county. But, even if such a condition of affairs were possible or reasonably probable, it is not claimed that such is the condition in this case. It is not pretended that a fair jury could not be had in either the Fifth or First districts. As stated before, I assert that the propriety of the court’s decision must be tested by those facts, and those alone, which are shown in the return as grounds for his action. The facts stated in the return are not disputed by the petitioner, and hence we are called upon to determine only the legal sufficiency of the facts alleged by the district judge to warrant his decision. In this case, as in any other case before an appellate court, we cannot go outside the record and assume the possible existence of other facts than those disclosed by the record, in order to sustain or reverse the decision under review. The fact that perhaps a speedier trial could be had in Cass county than in any other is in my opinion no sufficient reason for the selection of that county. It is doubtless true that the speedy disposition of the case is a desirable thing, and under some circumstances would be a good reason for preferring a more distant county than a nearer one. I maintain, however, that, where the trial is not likely to be delayed for any great length of time by selecting the nearer county, then the mere fact that the case may be
Finally, I cannot agree with my associates in the holding that the defendant, when he was /informed' that the district judge had selected Cass county, should have offered proof that the nearer counties were unobjectionable. As already stated, the presumption was that a fair trial could be had in any county other than those of the Eighth judicial district. It was not necessary for the defendant to reinforce the presumed fact with corroborative proof. If the reasoning of. the majority were true, then a defendant who obtains a change of venue for local prejudice must come prepared to show by proof in what counties a fair trial can or cannot be had; and this, even though no one questions the presumed fact that a fair trial can be had in any county. Neither can I agree with' the opinion of the majority that the petitioner is not in a position to obtain a review of the decision of the district court because he did not first make a formal motion for reconsideration of the selection in that court. The district judge assumed to select the proper county without the aid of any suggestion from counsel, or any proof that the near-by counties were objectionable. He acted upon his assumed knowledge of the facts. What those facts were he did not disclose to the parties below. How, then, could the defendant below offer proof in support of a motion for reconsideration, when he was ignorant of what undisclosed reasons for the selection were in the mind of the judge?
The petitioner asserts that there could not have been sufficient reasons in the mind of the court. He takes the position that he is willing to concede the truth of all the facts which the district judge alleges in this court as reasons for the decision, but contends that those facts, instead of supporting the decision, show an abuse of discretion. In other words, his only contention is that the undisputed facts show an abuse of discretion. In my opinion his contention is clearly sound, and the relief ought to be granted.