Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-11-20
JUDGE GOSS IS SUS.
TANNED In MURPHY CASE

county in which Major Murphy APP
pealed from decision ~ Judge Goss,
sending the case against Murphy for
forgery in the third degree to Cass
county for trial. Murphy appealed
on the ground that Cass county was
too remote from Ward and that
Goss's action was an abuse Of judicial
discretion. The supreme court holds,
under the. fact shown, that it was not
such an abuse, and that the case must
60 to Gass county for trial. Judge
Engerud dissents from the conclusion,
holding that. Judge Goss's order
should not be sustained. The sylla-
bus is as follows:
H. Under the statutes Of the state
regulating changes Of place of trial
in criminal cases upon defendants ap-
plcation, because Of prejudice which
preeludes. fair and impartial trial
In the county where the indictment or
information Is laid the presiding
Judge is not limited, in selecting q
place for trial. to adjoining counties
or judicial districts. The single
statutory requirement Is that he shall
send the case where the cause COM
planned Of does not exist. &
3. When a change of place OF trial
is obtained by defendant because Of
local prejudice, the duty Of selecting
the place for trial rests exclusively
upon the presiding Judge in the e4er-.
else of a sound judicial discretion.
8. When q change has been grants
ed and another county selected, Il
will be presumed that the discretion
of the presiding judge was exercised
properly; and the burden is upon one
attacking his order TO show afiirma-
lively a manifest case Of abuse; and
this court Will not, under its superin-
tending power over Inferior courts,
revise his order In the absence OF such
a showing; and in no case will 1t sub
stitute and enforce It's discretion as
against the discretion Of the presid-
ing judge.
Engerud, J., dissenting. "
4. The defendant, who stands
charged with the crime Of forgery in
the, third degree IN. the district court
Of Ward county, applied for change
Of trial and Of Judges, because Of
local prejudice and prejudice Of the
presiding Judge, and requested q
speedy trial. A change was granted
to Cass county and the Judge Of that
district was designated as the Judge
to preside at the trial. After the
order was made, the defendant OBJ
jected upon two grounds: a. Be
cause it was not sent to an adjoining
or neighboring county; and ca be-
cause of the added expense of taking
witnesses to Cass county. It is
shown that a speedier trial could be
had in Cass county than elsewhere;
and it is conceded in this court that
the courts action was proper in not
selecting an adjoining county, and 1t
Is also conceded that fair and Inn
partial trial is assured in Cass county
and before an unprejudiced Judge;
and 1t is not claimed or shown that
the defendant will be prejudiced in
making his defense. It is held, upon
defendants application for writ Of
5certiorari to review said order, that
these fects. and those set out in the
opinion. do not show an abuse Of dis
erection by the presiding judge such
as will warrant the exercise Of the
experimenting Jurisdiction Of this
court, and the writ is therefore de-
MED. s.3..s.
/ Engerud, J., dissenting.