Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-06-16
.C en- Of venue VI. !: ]. CASE J |
.IN1HE SU p ||' /:
CASE HAS BEEN TAKEN UNDER
[ Il AMUSEMENT ~ SUPREME
I'M COURT. IT,. 49,,
Great Interest Has Been Aroused In
. Case and Decision Will 30 Awaited
a. with Interest,

h In the supreme court Tuesday argu-
ments were made by Attorney General
Miller and Attorney Newton in the
order made last week by Judge
Spalding, acting chief justice, direct
ing Judge Winchester of the district
court to show cause why writ of
.certiorori should not issue in the Nc
ellis case, the question involved be-
ing the order made by Judge Win
chester last week denying the applf-
cation of the attorney general for a
change of venue from Burleigh coun-
lty.H
sl& Attorney Newton presented the! re-
turn of Judge Winchester to the order
of the supreme court, holding that
the question of a change OF matter
was one for the discretion of the
court, and citing the. aff1davits that
had been made counter to the aff1dav-
1t of the attorney general as showing
that the case could have fair and
Impartial trial in Burleigh county.
Attorney General Miller argued the
case of the issuance of the writ, citing
the laws giving the state and the
defendant change of venue upon a
proper application, and holding that
the section made it mandatory upon
the district court to grant the change
Of venue.
Attorney Newton held the matter
was one for the discretion of the court
and opposed the attorney generals
contention that the discretion Of the
court had been abused.
-, Four judges sat during the hearing
ofX the arguments, Judges Spalding,
Fisk, Ellsworth and Carmody.
In his address to the court the at
tori1ey general took occasion to sew
erely ciriticise the Judge of the dis
trict court, Judge Winchester, for his
failure to grant the change Of venue
asked for. He based his argument to
the court that the action of the dis
trict Judge was an abuse of discretion
upon what he, the attorney general,
related as the conditions in the Sixth
judicial district regarding the enforce
ment of the prohibition law, and what
he stated had been the conditions
for many years past. He charged
that no attempt had been made to
enforce the prohibition law, that open
saloons had been conducted in the
district, and that the district Judge
had knowledge of these conditions.
He claimed there had been few pun
ishments for infractions of the pro-
hibition law in the western part of
the state. He referred to liquor cases
brought in this city several years ago
and their termination as evidence
that the state did not have fair op-
portunity to stamp out the liquor evil.
He cited the grand jury proceedings
Of two or three years ago as evidence
Of the conditions that prevailed in
this county regarding the enforcement
OF the prohibition law and referred to
the report of the Morton county grand
jury, severely criticising the district
court.
With reference 10 later conditions
and in speaking Of the recent Meyers
trial, Attorney General Miller stated
to the court that all during the trial
OF Meyers liquor was sold at his place
in the building owned by Sheriff Nc
Gi1lis, and offered the court amdavits
to show that beer and whisky was
openly sold in the place while the
Meyers jury was celebrating over its
verdict. This afadavit was objected
to by Judge Newton, attorney for Nc
C1llltS, ana JuOSe c1SA dShoO IL IL udu
been presented to the district court
in the earlier proceedings, and Mr..
Miller said 1t had not been. having
lust been secured. Judge Spalding,
who presided, said it might be sub
nitted for the court to decide wheth- |
er it should be made record of the !
case.
Judge Newton then began his argu- |
nent by stating that he had supposed |
he. case would be argued on the law |
points and that the remarks Of the |
attorney general had nothing what
EVER to do with the issue involved.
which was the discretionary mower of |
he district court to refuse to grant
! motion for the removal of case
rom one county to another. He made
N able argument on law governing
his Issue citing a number of author
ties In support of his contention, at
the court took the case I'M
Ter advsement.