The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1929-05-30
Mcfarland to Hear
Motion for Change
Of P0tter's Trial
tContinued from page one,

Will ccplIlS 6IlU uldluCdlIllI1S n COIu.
n nuisance as a second offense
will be made when Rossen's case
comes to trial for the same reasons
included in the Walla motion. &C
cording to Scott Cameron. Rossen's
counsel. Unless the records arc
found 1t is probable that the motion
will be sustained by Judge Mcfarland.
Edwards Still Missing
r.. E. Edwards, representative of the
U. s. Magic Iceless Refrigerator COM
pany. who faces q charge Of obtain
ing money under false %preterses. had
failed to show up as the eighth day
of the present term came to an end
yesterday. His bonds, for 5000, fur
nished by three Bismarck men. were
ordered forfeited and Edwards arrest
was ordered last week by Judge Fred
Jansonius.
Though the second trial this term
of Frank Molf on a statutory charge
tentatively was. scheduled for 0 a. m.
tomorrow. prosecutors plans were in
definite today. It Is probable the Mol
trial will not come tomorrow. as ~
of the witnesses In the case Is out
of the city for a few days. The jury
disagreed In Moll's first trial.
James A. Coffey. jamestown. for
mel Judge. was the sitting judge when
Walla's indictments were returned by
the grand jury last December. Judge
Judge McFarland's complete ruling on
the Walla motion yesterday follows:
This case. being the State against
=. M. Walla. Case No. 1928, has be-
come involved in q serious legal diff
ficulty. The court was not unmind-
full Of the serious element of the OBJ
lection and motion made by the de-
PENDANT in the first instance. The
sitting judge. the states attorney. Mr..
Register, the assistant prosecutor. Mr..
Sullivan. have had naught to do with
this indictment that Is laid In this
case. They inherit this situation by
reason OF their official duty. None
OF the parties participants in this
trial are In any way responsible Tor
any irregularities which have been
brought to our attention. This being
the nature Of which 1t purpOrtS to
be, it was the defendants attorneys,
Judge Crum'S, duty in faithfully rep
rcsenting his client to raise this
question and make the attack. Coun-
sci for the state have done, I believe,
all that Is within their power to
supply the matter Of court records
necessary to sustain the indictment,
which In q usual and ordinarily con-
Quoted court one would not be re-
quired to search for. but they should
be where they could easily be found.
In order that any court hereafter in
tcrested in the ruling here made, or
others interested, may know the
reason for the ruling here made, the
court will briefly outline the decision
here rendered.
The motion is made by the de-
PENDANT to quash the indictment and
to bar further prosecution there
under. This attack strikes at the
legal vitality Of the indictment, and
the right to further prosecute the de-
PENDANT hereunder. We have q
statute expressly providing and set
ting forth the universal will Of the
people Of the state. equally binding
upon the court, the attorneys. the
defendant and all the people alike,
touching the transactions involved.
This law is set forth in Sections 1074l
and 10742, G. L. 1919. The statute
Sec. l0741, provides:
Effect II sustained. Further
proceedings. r the demurrer Is sus-
lained the judgment is final upon
the information or indictment de-
INJURED to, and Is q bar to another
prosecution for the same offense. UNI
less the court. being Of the opinion
that the objection IN which the de-
murrer Is sustained may be avoided
in q new information or indictment,
directs another or an amended tnfor-
nation. or an information in the
place Of the indictment demurred to
as provided by law In case an indict-
ment is set aside, to be filed, or that
the case be submitted to the same or
another grand Jury
Section l0742 provides:
"'If the court does not permit the
information to be amended no di-
rect that another information be
filed or that the case be resubmitted
as provided in the preceding section.
the defendant. II in custody. must be
discharged, or, II admitted to bail, hts
bail is exoneratcd, or. II he has de-
posted money instead Of bail. the
money must be refunded to him.
There was q former indictment
returned by the grand jury, charging
the same offense as laid In the indict-
ment on trial. A demurrer was
lodged against such former indict-
ment. The demurrer va sustained.
No direction was given or order was
entered by the court or any direction
made or entered upon sustaining
such demurrer, rs to resubmission OF
the case again to the grand jury, or
the filing Of any further informa-
ton thereon. We have had the clerk
before us as . witness: Q clerk who
has had years Of experience, who
keeps and makes accurate records.
His testimony d that the sitting
court from the bench In minutes
Of that courts record sustained the
demurrer. There q an absence Of
any order Of direction Of further dis
position In any manner Of the case
under consideration. The statute Is
plain and says unless this direction
is given and In legal Interpretation,
the same would mean an affirmative
record appearing In the files Of the
court In the ease ct bar. Of an af-
firmative order and direction to the
prosecutor that the case be resub-
mitted. or that IN information be
thereafter filed in the manner and
within the time Is Is by the statute
provided It ID Z bar 70 another prose-
rution for same offense. This was
not in any manner effected or done.
The statute setting forth that UNI
less the same Is done, the act Of sus-
tanning the demurrer is . bar to
another prosecution for the same
offense. The statutory, mandatory
directtops 70 tho sitting, court as to-
what vas necessary to be done In
order that further proceedings in the
case b had BY the resubmisstor .Of
tn matter u the grsnd jury or the
MOL = 49,