144 N.W. 232 | N.D. | 1913
On the 10th of June, 1913, an information was filed against the appellant in the office of the clerk of the district court of McKenzie county, charging him with ■ the offense of keeping for sale intoxicating liquors as a beverage in said county. It would seem from the abstract that he had had a preliminary examination before a magistrate prior to the convening of the next preceding term of the district court, which was held in October, 1912, on this offense, and had been held to the district court by the magistrate, and that the cause had been placed upon the calendar of the October, 1912, term of that court, but that no information was filed until the June,’ 1913, term. Sometime during the October, 1912, term, he made an application for a continuance, on the ground of illness, which application was granted by the court. On the same day that the information was filed, counsel for appellant filed a motion and affidavit for change of the place of trial to some other county, upon the following grounds': 1. That the person appointed to prosecute had undue influence over the minds of the people of McKenzie county, and particularly over the minds of the jurors impaneled to try and determine said action; 2, that the sheriff of said county had similar undue influence; 3, that the state’s attorney and the
That the provisions of § 9929, supra, are mandatory, is not open to question. It was so held before the statute was amended, and when the word “may” was used instead of “shall” in “it shall be the duty of the court.” State v. Kent, 4 N. D. 517, 21 L.R.A. 686, 62 N. W. 631; State v. Barry, 14 N. D. 316, 103 N. W. 631.
The change in the language of the statute makes it more imperative than formerly, and was intended to leave no question of its construction open. It is made the absolute duty of the court when an affidavit setting forth the facts specified is presented before the trial is begun, to change the place of trial and secure another judge to preside. It is not left to the judge to try and determine the question of his own disqualification, and as the change in the place of trial is coupled with the change of the judge, the same language applies, and the two demands cannot be separated, and one denied and the other granted. They are equally mandatory. When the affidavit conforms to the requirements of the Code, and his affidavit is presented in time, no trial can be had in the county where the information is filed, and the judge of that district has no further jurisdiction or power, except to make the transfer and to secure another judge to preside.
Do the provisions of § 9920, which require the petition to be presented at the first term at which the action can be tried, or if it has been continued, before the term to which it is continued, and upon notice to the state’s attorney, apply to an application under § 9929 ? It is argued by the state that, because the several sections to which we have made reference were orginally one enactment, and because of the phrase in § 9929 reading, “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 request, etc.,” it reaches over and limits the provisions of § 9929, and when the application for a change of the place of trial and of the judge is not made at the first term at which the case could have been tried, or when it is not made until after the commencement of the second term, and then without