*1 ’’ fees of executors attorneys. administrators and their “actually words and paid” allowed as used in the statute do not relate to ordinary expenses of administration. appealed
The order from affirmed. MR. FREEBOURN, JUSTICES and ANDERSON concur. MR. CHIEF JUSTICE ADAIR and MR. JUSTICE BOT- TOMLY. dissent, reserving right
We later file herein our setting forth the facts and reasons for such dissent.
STATE OF MONTANA ex DRYMAN, rel. FRANK R. also as FRANK VALENTINE, R. v. DISTRICT Relator,
known COURT NINTH OF DISTRICT, Respond- JUDICIAL et al., ent. No. 9479. September
Submitted 1954. Decided November 1954. (2d) *2 Jerry O’Connell, Falls, Mr. J. relator. Great for Olsen, Mr. Atty. Gen., McKeon, Spec. Arnold H. L. Mr. John Deputy County Atty., Anaconda, respond- County, for ents. orally. O’Connell, argued
Mr. Mr. Olsen and Mr. McKeon MR. JUSTICE FREEBOURN: original relator, is an proceeding in this court wherein Dryman, prohibiting
Frank R. respondent seeks a writ court judge carrying changing place from of trial out an order County. County of relator from Toole to Teton April 29, 3954, On in this its decision the case of court rendered State v. relator wherein County had respond- been convicted of murder in Toole in the respondent judge. ent court and In this before the such decision granted court a new trial and that trial had directed such new be adjacent” in some “not to May 21, respondent judge
On that court and ordered “pursuant of Montana in to decision Court of the above entitled case that defendant’s motion for [relator’s] change place from Toole in of Mon- the State tana in be, to some other the State of Montana and the hereby is, same granted hereby and the said action is transferred for trial to State of Ninth Ju- dicial District of the State of Montana accordance with the * * provisions applicable of law thereto September 21, 1954,
On the relator filed in his this court petition asking annulling issue a writ May setting judge aside the order court and 21, 1954, whereby changed relator’s of trial was to Teton for the reason is a
county adjacent to Toole
A temporary stay argued issued and before this the matter was September court on 30, 1954. ‘adjacent’
“The word ‘ad-jaeeo,’ is Latin derivation from at, to lie or arbitrary near. It has been said that the word has no meaning or definition, but that term not a is a relative and one, which, definite and absolute meaning and the exact any particular case, is principally by determinable the context it used, which is case, facts and circumstances of the subject matter it applied, Leg- to which is or the intent of the parties; islature or the usually given and the word is broad substantial construction and not limited the literal meaning by lexicographers.” S., Adjacent, as defined 1 C. J. pages 1464, 1465. determining adja- whether Teton is or
cent to Toole we take consideration what into here, said but what Dryman, also we said in 125 Mont. State v. *3 and v. State (2d) 796. 6, 1951,
On prison board, June the state state located at the capital consisting and governor, attorney general of the sec- and retary state, request County, at the the sheriff of Toole request approved by which respondent judge, was the authorized relator, the accept custody warden the state the charged had been who with the crime of murder and was await- ing request writing trial in Toole Such in the was form of affidavit and stated that: “The Toole facilities of jail County adequate proper protection are not to afford for the during period above-named defendant the of time be- [relator] * * * captioned fore case can be the adove concluded. The under- Dunstall, signed, County, O. sheriff of C. Toole re- your spectfully requests honorable Board authorize re- the Deer moval of Lodge, the Montana above-named [*] * defendant to the state penitentiary at sheriff another elected officer of County ap- and Toole secretary of and peared attorney governor, general before orally support request. state to by judicial district, presided
The ninth over County, Toole judge, counties, namely, of four Glacier consists Toole County, County Pondera and Teton Glacier ad- line and by Counties the Canadian are bounded on the north join and Toole other, County being each the west Glacier length running County to the east. Pondera with its County their adjoins County on west, east and Glacier and Toole County south and south borders and lies between Teton to the County is Glacier and Toole Counties to the north. Pondera road narrow from north to south measurements from state that, County map although would indicate Glacier County separated by Pondera, part are the south border of bord_er County part are of the north of Teton twenty apart. about miles judicial VIII, see. district, required by
The ninth Article territory compact of Montana is “formed Constitution [Glacier, Toole, Pondera and Teton ”. These counties: Counties] Compacted required by Constitution, by a ra- umbrellaed Shelby, dio station at seat with of Toole present day transportation communication, means of another; although adjoin- are close to one and Teton ing County is it. close to attorney general
At hearing governor, held and sec- retary upon request of state that relator be confined in the attorney prison, general posed question, state when the Could safely relator be confined in Glacier or Pondera County (he not mention Teton County), did the answer was in Nothing appears any negative. showing the record attempt transfer relator from was made to to Teton safe-keeping. *4 request governor, attorney the
Acting upon gen- the sheriff’s state, secretary prison board, 6, 1951, on eral and June passed following the resolution: feeling adja In
“Whereas: view of against cent was of [relator], counties Board defendant opinion only that the safe for the defendant until stay Court has appeal acted on the of execution would be the Montana State Prison.
“Now, Therefore: Be it resolved that Board of Prison Com- missioners for the State authorize direct the of Montana Warden accept of the Montana the de- custody State Prison to * * fendant, Dryman Frank R. prison purpose permitting
The state board’s the defendant kept and relator protect to from be the state was to him danger in Toole purpose counties. court’s sole in directing that relator’s had in “not new some adjacent” by him to Toole was to to fair trial secure impartial jury every guaranteed person charged which is to by with a crime our Constitution.
Under all facts and circumstances this case and for stated, county adjacent reasons must be held to be a to judge
Therefore the is annul directed to and set transferring action, aside the order the said wherein is plaintiff State R. Dryman, of Montana and Frank also known Frank R. Yalentine, defendant, to County for trial. Let the writ issue.
MR. ADAIR MR. CHIEF JUSTICE BOT- JUSTICE TOMRY, concur.
MR. (specially concurring). ANDERSON: JUSTICE (2d) 796, majority State v. granted court directed a new trial be in some adjacent” “not opinion In that I dissented. presumptuous It would be for me decide what intended was the members who subscribed their names to I accept they the results reached therefore have here.
MR. ANGSTMAN: (dissenting). JUSTICE appeal No. Dryman, issue on case State v.
407 a have Dryman could Mont. 269 Pac. was whether already that he County. thought fair trial in I he could in as to conditions presented has had a fair trial. No issue was County. Teton change of venue only petition for presented by the The issue ‘‘ Montana, Toole, State of people
was: of That the of have that he cannot prejudiced against are so defendant the said in jury fair a the Coun- impossible trial that it is to obtain a opinion, ty Toole, State of that has not formed of defendant, as would guilt to the or innocence of the said jurors.” disqualify them as only in the record and considered presented evidence relating to con- this evidence
the district court and court was True, that the County. pointed out ditions this court prejudice of newspaper the basis the claim article which was 75 in had a circulation in Toole Glacier County. was the Liberty 80 in 115 in Pondera only than Toole evidence of conditions other counties County. This as to Teton there was no evidence whatsoever in Teton opinion court’s not the conditions Coun- did consider adjacent ad- ty or and in fact made no reference whatsoever to its concluding paragraph until joining counties trial change it where ordered county other not thereto.” “to some adja- majority said as to my opinion what the then If as dictum cent was dictum. it be considered counties application having it must be no considered concerning no more the condition because there was evidence regarding in Treasure County than there was conditions any adjoining county or other concerned, it state board too So far as the order of the in Teton If the nothing had to do with conditions by it given meaning is to be ascribed to board’s conclusion opinion, proper place then in Montana is a majority no in its safe the board said order “the for the because has until the Court acted on place for the defendant stay appeal for a of execution -would the Montana State Pris- every jail That on.” excludes state. order applied I think the writ should be denied. MONTANA,
THE STATE OF Respondent, Plaintiff v. Appellant. MADDEN, G. GARVIN Defendant No. 9426. Submitted November November 1954. Decided *6 (2d) Mr. Gillan, Havre, John D. for appellant. Atty.
Mr. Olsen, Arnold PI. Gen., IPeckathorn, Mrs. Vera Jean Atty. Gen., Jr., Havre, Asst. Ober, County Atty., Mr. Edward J. respondent. Mr. Gillan orally. and Mrs. Heekathorn argued MR. CHIEF JUSTICE ADAÍR: The defendant was convicted of degree assault the first appeals judgment from the of conviction and an denying order him new trial.