State v. Winchester , 18 N.D. 534 ( 1909 )

Carmody, J.

This is an application for an original writ of certiorari on behalf of the state, the plaintiff, in State v. Duncan J. McGillisv On the return day both parties appeared by counsel, submitted their arguments, and stipulated that .the case might be disposed of on its merits on the moving papers of the Attorney General and the return of the respondent.

On June 1, 1909, the Attorney General filed an information in the district court of Burleigh county charging Duncan J. MeGillis with the crime of knowingly permitting a building owned by him to be used for the purpose of unlawful dealing in intoxicating liquors in violation of law. On the same day he pleaded not guilty to said information. On June 3d the state, by the Attorney General, filed in said district Court a motion for an order changing the place of trial of said action. The motion was based upon the affidavit of the Attorney General, which alleged, in substance that in his opinion the state could not have a fair and impartial trial in Burleigh county. Thait the people of said county were so prejudiced against the prosecution and conviction of offenders against the various statutes of this state prohibiting the illegal sale of intoxicating liquors and unlawful use of buildings for such purpose that said laws have ever since their enactment been openly and notoriously violated by numerous and divers persons in the City of Bismarck and various parts of the county with the knowledge and tacit approval of the people generally and of the peace officers, and that attempts to punish offenders against such laws have generally been met with determined resistance and refusals to convict or indict without regard to the evidence furnished by the prosecution, and that at this term of court one Bartheau on his third trial for violation of the prohibition law was acquitted. That the defendant in this case is the duly elected, qualified, and acting sheriff of this county, and as such sheriff, by himself and his deputies, subpoenaed the present jury, and as such sheriff, through himself and his deputies, has charge of such jury. That, in addition to being sheriff, he is an active politician, and one James Myers, who is now under arrest for violation of the prohibition law, was at the time of his arrest a tenant of the defendant herein in the defendant’s building described in the information. That another defendant, Joseph Higgins, who-was arrested at the same time, charged with keeping a common nuisance, was a tenant of one E. G. Patterson. That said E. G. Patterson for many years has been a prominent politician in this county, and is now chairman of the board of county commissioners. That said E. G. Patterson and the defendant McGillis up to this date and for many years last past have been at all times directly or indirectly interested in places where intoxicating liquors have been sold in violation of law, or directly engaged in the sale of intoxicating liquors in violation of law, and for many years have been the leading influence in this county that has made possible the prevention of the enforcement of the prohibition law, as affiant is informed and verily believes, and that the prestige of said E. G. Patterson, and of the said Duncan J. McGillis, wheii combined, is so great that affiant believes that a jury cannot be had in the county that would give the state a fair trial in the case of the State of North Dakota against Duncan J. McGillis. That while said motion for a change of the place of trial was still pending and undetermined, and on June 4, 1909, the Attorney General made a motion and requested the respondent to call in a judge of another district court of this state to preside at the trial of .said action. On June 10th the respondent denied the motion of the State for a change of the place of trial, and requested the Honorable W. C. Crawford, Judge of the Tenth Judicial District to preside at the trial of said. action in Burleigh county. Thereafter, on June 11, the state, through the Attorney General, setting forth the facts and proceedings above stated, procured an order from a judge of this court commanding the respondent to show cause before this court on June 15, 1909, why an appropriate writ should not issue requiring and commanding him to transmit to this court all pleadings, orders, affidavits and records herein and the records of the proceedings had in said criminal action entitled, “The State of North Dakota v. Duncan J. McGillis,” to the end that this court may review the rulings thus made. On the return day a verified answer to the order to show cause was filed on behalf of the respondent, which states the reasons for his action, in substance, as follows: Admits the filing of the information against Duncan J. McGillis, his plea of not guilty, the motion for the change of the place of trial of the action of the State of North Dakota against said Duncan J. McGillis. That the Attorney General made the affidavit mentioned in his application for the order to show cause which was used in support of the motion for a change of the place of trial; the application of the state to have respondent call in another judge to preside at the trial of said action. That he called in the Honorable W. C. Crawford, Judge of the Tenth Judicial District. That D'uncan J. McGillis, defendant in said criminal action, filed his own affidavit, the affidavits of E. G. Patterson, G. F. Dullam one of the attorneys for the defendant, and of some thirty or more persons resident within Burleigh county and the city of Bismarck. On behalf of said defendant the affidavits admitted that said Duncan J. McGillis, the defendant, is sheriff of Burleigh county, and that E. G. Patterson is chairman of the board of county commissioners. That defendant, by himself and his deputies, subpoenaed the present jury, and by himself and his deputies has charge of such jury, and denied, in substance, all the other allegations in the affidavit of the Attorney General, and stated that in the opinion of each the state could have a fair and impartial trial of the action of the state against Duncan J. McGillis in Burleigh county. That in view of all the affidavits mentioned, and in consideration thereof, the said respondent then and there became and was convinced that no cause existed sufficient to move the discretion of said court ■ or to justify the removal of the action against said Duncan J. McGillis from said Burleigh county to some other county for trial, either within or without the Sixth Judicial District, and he therefore denied the motion of the Attorney General to change the place of trial in said action. It is, and has been, the universal practice of this court on the return of an order to show cause to pass upon the merits on all applications for original writs where the parties stipulate that this may be done, and also stipulate that the facts are as set forth in the moving papers and the respondent’s return. Such stipulations were made in this case.

There are two questions involved in this case: One, whether Sec. 9931 of the Revised Codes of 1905 is mandatory. Said section reads as follows: “The state’s attorney, on behalf of the state, may also apply in a similar manner for a removal of the action, and the court, being satisfied that it will promote the ends of justice, may order such removal upon the same terms and to the same extent as are provided in this article, and the proceedings on such removal shall be in all respects as above provided.” The other whether the facts presented show that the respondent abused his discretion in refusing to grant the motion for a change of the place of trial. We are convinced that Section 9931, supra, is not mandatory, and that the state is not as a matter of right entitled to a change of the place of trial in a criminal action. In State v. Kent, 4 N. D. 577, 62 N. W. 631, 27 L. R. A. 686, this court, speaking through Judge Corliss, says: “The question whether a fair and impartial trial cannot be had in the county in which the action is triable must be settled by the judge. It must be made to appear to his satisfaction by affidavit that a fair and impartial trial cannot be had in that county. Having no interest in the question,.the law very properly leaves it to him for a decision.” In this case, as in any other case before an appellate court, we cannot go outside of the record and assume the possible existance of other facts than those disclosed by the record in order to sustain or reverse the decision under review. The granting or denying of an application duly made for a change of the place of trial of an action on the ground that an impartial trial cannot be had in the county where the action is pending is a matter within the sound discretion of the court to which the application is made, and its ruling will not be disturbed except for an abuse of discretion. Ross v. Hanchett, 52 Wis. 491, 9 N. W. 624; Giese v. Schultz, 60 Wis. 449, 19 N. W. 447; State v. Hall, 16 S. D. 6, 91 N. W. 325, 65 L. R. A. 151; Territory v. Egan, 3 Dak. 119, 13 N. W. 568; People v Webb, 1 Hill (N. Y.) 179; People v. Baker, 3 Abb. Prac. (N. Y.) 42; Commonwealth v. Balph, 111 Pa. 365, 3 Atl. 220; Commonwealth v. Delamater, 145 Pa. 210, 22 Atl. 1098; People v. Peterson, 93 Mich. 27, 52 N. W. 1039; People v. Fuhrmann, 103 Mich. 593, 61 N. W. 865; People v. Vermilyea, 7 Cow. (N. Y.) 137.

In People v. Baker, supra, the court says: “There are many palpable reasons why tiñáis in criminal cases should ordinarily be had in the counties where the transactions which gave rise to them occurred, and a change should not be made except for forcible and clearly established causes.” In People v. Peterson, supra, the court says: “It cannot be said but that the question rested within the sound discretion of the trial court to judge and determine the sufficiency of this showing for a change of venue.” The Attorney General made a very strong showing in behalf of the state, yet we cannot say, after a careful review of his affidavit and the return of the respondent, that the district court abused its discretion in denying the motion of the state to change the place of trial.

The fact that the defendant, as sheriff, by himself and his deputies, subpoenaed the jury, might be sufficient cause for a challenge to the panel, but is not cause for a change of venue. It follows, therefore, that the application for the writ must be denied and the temporary restraining order dissolved, and it is so ordered.

Morgan, C. J., and Fisk. J.. concur. Spalding and Ellsworth, JJ., dissent.