114 N.W. 472 | N.D. | 1908
This is an application for a writ of certiorari. It is based on the proceedings had in the district court of the county of Morton, on which the application for a writ of prohibition was made, and the issuance of the writ denied by this court, and the opinion therein filed on this day. The same facts are presented on this application, that were presented on that application and in addition to the questions raised on that application an additional one is presented on this. On this application we are asked to review the order of the district court of said Morton county, by which the place, of the trial of the indictment found against the defendant was changed from the county of Morton to the county of Barnes on the application of the state, made through the state’s attorney. The state’s attorney filed an affidavit in which it was set forth that the state could not obtain a fair trial of said action in said county of Morton, by reason of-the fact that the people of said county are so prejudiced against the prosecution of the offense with which the said Zinn was charged, that is, the maintenance of a common nuisance in violation of the prohibition laws of the state of North Dakota. In said affidavit the state’s attorney recited the fact that violations of the prohibition law were common in said county of Morton, and that said prohibition law was notoriously violated in various sections of said county, with the knowledge and approval of the people generally and that all attempts to punish offenders against said law have generally been met with determined resisttance, and a refusal to convict -the persons charged, without regard to the evidence furnished by the prosecution. The affidavit further states that the prejudice existing in the county of Morton against the enforcement of the prohibition law is general in the various counties or judicial subdivisions of the Sixth Judicial district, and that he believes there is no county in the Sixth judicial district in which the state could secure an impartial and speedy trial of the defendant. Upon the filing of said affidavit, the district court made an order changing the place of the trial of the defendant under said indictment from the county of Morton to the county of Barnes in the Fifth judicial district. Upon the making of said order the defendant in that action, and the plaintiff in this proceeding, applied to this court for a writ of certiorari to review the order thus made.
The judge of the district court of the county of Barnes, in the Fifth Judicial district, who was the presiding judge at -the November term of the district court in and for the county of Morton, where the
In this case the change of the place of trial was asked solely on the ground of the prejudice of the people of the county against-the enforcement of the prohibition laws. The change was not asked on account of 'the prejudice of the defendant as presiding judge at that time. Under section 9919, Rev. Codes 190S, the defendant is entitled to a change of the place of trial upon his filing a petition on oath setting forth 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
The sole question presented in this case is whether the district court acted within its discretion in transferring the trial of the action to the county of Barnes. The county seat of the county of Barnes is situated about 140 miles from the county seat of the county of Morton. The affidavit of the state’s attorney on the application for the change, and the defendant’s return on the application for the writ of certiorari, conclusively show that the defendant, as judge, deemed it to be a fact the same conditions exist in all the counties of the Sixth judicial district as exist in the county of Morton with respect to the enforcement of the prohibition law. We may therefore take it as amply shown that the district judge was convinced that he could not have transferred the action to any other county in the Sixth judicial district and thereby secured to the state a fair and impartial trial. The question as to what county or district he should transfer the trial of the action was one entirely i within his own discretion, subject to be reviewed, if abused, by this! court. As stated in Murphy v. District Court, 1 N D. 542, 105 N. W. 728, “the only requirement imposed by the statute is that it must be sent to a countv nr judicial subdivision Svhere the cause
It was urged on the argument that the petitioners were prejudiced by the order, for the reason -that the trial would be more burdensome to them by reason of the additional expense in going to Barnes county. This matter was considered by this court in the Murphy -case, supra, -and it was there decided that the additional expense necessarily incurred by reason of the change was not a matter that would warrant this court in holding that the order was an abuse of discretion. The statute in express terms at section 10217 makes provision for the payment of the fees of witnesses in attendance upon trials of persons accused of crime, who are unable to pay for the attendance of their witnesses. The additional expense in going thirty-five miles between Stutsman -county and the county seat of Barnes county is so small that it cannot be considered as an argument that should weigh with us in holding that -the trial court acted beyond its legal judicial discretion.
In this case no question is raised as to the propriety of the writ. For these reasons, it follows that the application for a writ of certiorari must be denied.