Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-01-12
Court UphOlds Authority Of Judge Burke to Transfer
Gases for Trial in Barnes County on Show
ing Made by Prosecution
Validity Of Discharge Of First Grand Jury SummonEg
Is Of Second and All Acts Of District Court
Upheld Despite Alleged Errors

Yesterday the supreme court hand
ed down decisions in the Mandan pig
cases and by the decisions rendered
Judge Burke is upheld by the higher
court.
The original writ Of certiorari is de-
MED by the higher court, as is also
the writ Of prohibition. Both de-
cisions are by Chief Justice Morgan
and while the decisions are based on
the linn case, the rulings of the
court will have the same effect on all
the cases tried in the recent term Of
court in Morton county.
In denying the original application
for writ Of certiorari the supreme
court held that 1t was not an abuse
of discretion to transfer the trial of
these cases to Barnes county, and
the syllabus by the court is, in part,
as follows:
Upon the application of the state
for q change Of the place Of the trial
Of a criminal action, on account Of
local prejudice, the presiding Judge
transferred the case for trial to
Barnes county, being about 40 miles
from the county where the action was
pending. It was shown that a speed
Ter trial could be secured in Barnes
county than in any county in the
Fifth district. 1t was shown that the
same prejudice existed in every coun-
ty in the Sixth district as exists in
the county where the action original
ed. The only other county nearer
to the county where the action origin
ated than Barnes county is Stutsman
county, which is IS mills nearer than
Barnes, and under such circumstances
the court holds that it was not an
]. abuse Of discretion to transfer the
trial to Barnes county.
The facts on which the writ of pro-
hibitiOn was prayed for are in part
as follows:
The judge of the district court for
the Sixth district ordered a grand
jury to be summoned for the Novem-
Der term of court for Morton county
and requested Judge Burke Of the
Fifth district to preside. A grand
jury was regularly summoned and
proceeded with the performance of It's
duties. The jury considered the evil
dopco produood ~ AZ, 80, -,
against Fred linn for violation Of the
4 prohibition law. but failed to return
an indictment and recommended that
the action be dismissed. Upon the
presentation to the court Of the re
port the latter made an or
der discharging the grand jury and
recited in the order that the evidence
submitted to the grand jury was SUI.
ficient on which to base an indict-
ment" and said further that:
s******~ 49,
The court being satisfied that !.
8 said failure to indict in said !.
8 case was not based upon the :.
8 evidence, but upon a determine !.
8 ton of the grand jury not to en- :.
= force the provisions Of the prohi- :.
bition law and the court believ. I.
= ing that the other cases would :.
= not receive at the hands Of that 4:
= grand jury fair consideration up. :.
= on the evidence by reason of {.
said grand jury's prejudice :
= against the prohibition law and i:
= that 1t would serve no useful I.
= purpose to submit said Other {.
= cases in relation to the violation I:
= of the prohibition law to said !.
2 grand jury and that the public :
/" good would be best subserveG 4.
= by discharge of said grand =
= jury from further duties at said .
& term OF court. 4 !:
q e = So = = = = q ~ a Is
The further order recited the neces-
sity of calling another grand Jury
and one was ordered to be called at