We are unable to agree with the opinion of the court concerning the admissibility of the evidence of Mrs. Wolf with reference to a clandestine meeting between Mrs. Potter and some man in the room of Mrs. Potter's sister, Mrs. Krueger, more than two hours before the homicide. Nor do we agree with much that is said in the principal opinion with reference to the change of the place of trial. We shall set forth our views of these questions in the order stated.
As we understand the opinion of the court, it holds that the evidence was admissible for the purpose of establishing that the defendant Potter had a motive for the shooting of Webb and that consequently it negatives the theory that the shooting was accidental; also, possibly, that the evidence was admissible as being within the res gestæ. As we *Page 209 do not agree with that view of the testimony, we shall state as briefly as may be the reasons for our dissent. That the reasons may fully appear, however, it is necessary first to refer to the transcript showing just how the questionable testimony came into the case.
The evidence shows that Mrs. Wolf lived in Room 7 of the Q.B. R. building and Mrs. Krueger in Room 8 just beside Room 7, the rooms being separated by a partition. Mrs. Wolf was asked whether she was in her room at about eight thirty and stated that she was. She testified that Mrs. Krueger went out about seven thirty, and when she was asked whether or not about eight thirty some lady came up to Mrs. Krueger's room the question was objected to as being incompetent, irrelevant, immaterial, speculative and having no bearing on the case. The court stated that he could not tell from the question whether it was or not. Whereupon the attorney for the state said they were going eventually to show that the lady who came up there was Mrs. Potter; that the foundation had already been laid in the previous evidence. The objection was overruled, and Mrs. Wolf testified that some one came up the back stairs and went into Mrs. Krueger's room. That was about a quarter of nine. In response, then, to the question as to whether anyone else came up there at or near that time, she testified that some one came up the front stairs and went into Mrs. Krueger's room. She was then asked with reference to conversation and there was objection to that on the ground that it was incompetent, irrelevant and immaterial. Whereupon the attorney for the prosecution stated that they had laid a foundation to show that Mrs. Potter went up to that room in view of her declarations at home in the presence of her husband that she was going up to her sister's to go to a show with her sister. He stated that they were not going to put in what the conversations were but only sufficient to show that it was awoman who was in the room. Whereupon the defendant's attorney argued that the only issue before the jury was whether the crime charged in the information was committed at the time and place stated; that the matter the state was inquiring about was entirely remote and not connected with the alleged homicide in any way; that it transpired several hours before the deceased was alleged to have been killed; that the defendant was not present, and does not claim to have been present. The state announced that it was going to show that he became present. The court *Page 210 commented "You are asking that for the purpose of showing that there were people in the room?" The attorney for the state said "That is all," and the objection was overruled. The answer to the question "Did you hear some conversations was "Yes, I heard a man's and a woman's voice." Immediately after that the witness was asked "Now, did anybody else come up there after that?" The answer was "Mrs. Krueger came home and went in the room." When asked about what time Mrs. Krueger came, the witness said "About ten o'clock." Hence, it is apparent that the state has proven here that Mrs. Potter came up the back stairs to her sister's room about a quarter to nine o'clock and at about the same time a man came up the front stairs and went to the same room and that they remained alone in the room until about ten o'clock when Mrs. Krueger came home. Then the state went on to show that Potter came up the front stairs shortly after Mrs. Krueger came home; that he walked to the end of the hall and back and Mrs. Krueger opened her door and asked if he was looking for some one. This witness was unable to state what Potter said in reply to the question, but she did hear Mrs. Potter say "Come on, Ray, let's go home." Mrs. Wolf nowhere testifies that Potter went to the door. All the conversation she says she heard between Potter and Mrs. Krueger took place in the hall; also, Mrs. Potter's remark "Come on, Ray, let's go home" was addressed to him while he was in the hall. Mrs. Wolf testified directly that he did not go into the room. She testified that they went down the front stairs and that soon after as she was going out of her room she saw a man come out of Mrs. Krueger's room and go down the back stairs; that this was about a quarter past ten. Mrs. Wolf testified that she did not know who the man was and that she did not know Oliver Webb. When the defense moved that the evidence of the witness be stricken it urged that the evidence did not show that the party referred to as being in the hall or in the room could have been the deceased for the reason that during that time he was either at the home of the defendant or with Mr. Snyder. The attorney for the state then stated that they did not claim it was the deceased, saying "We claim quite the opposite."
In the brief filed in behalf of the state on this appeal, counsel say: "there is absolutely no evidence that Potter knew where Webb was between the time that Webb left his place with Bartley, and the time *Page 211 that Webb returned to his home and took Mrs. Potter down town on the last trip." Further, "As a matter of fact the circumstances in evidence disclose that there could not have been any question in the mind of Potter as to who it was that was getting out of the car at the time of the fatal shooting." If, then, the shooting were intentional he knew he was shooting Webb and not some other man. Further, "As a matter of fact, the conduct of Potter in the shooting cannot be explained in any manner other than by his knowledge that Mrs. Potter spent the previous portion of the evening in a clandestine meeting. . . . We do not want to be misunderstood as claiming that the man in this room actually was Webb. We do not contend that it was Webb, as the evidence of Bartley shows that it could not have been Webb, but we do believe, and contend that Potter believed it was Webb who was in that room."
As we understand the contention of the state thus gleaned from the brief, it is that the state might properly show, as it did, that Mrs. Potter had clandestinely met a man other than Webb in the room of her sister and had remained alone with him there for at least an hour and a quarter before her sister, Mrs. Krueger, returned. This it could show, it is contended, in order to give confirmation to a suspicion, supposedly entertained by Potter, that Webb and Mrs. Potter were meeting clandestinely. We cannot see how evidence that Mrs. Potter had in fact clandestinely met some other man would confirm Potter's suspicion that she had met Webb.
The state does not contend that Potter knew of any meeting such as Mrs. Wolf's evidence tends to prove. It seems to us that it could not substantiate any such contention, for the circumstances themselves do not afford any evidence that Potter knew of any such meeting. It must be remembered that when Potter came to the Q.B. R. building in search of his wife at least an hour and a half before the homicide, he did not find his wife alone but found her with her sister. There is absolutely nothing in the evidence to indicate that he had any reason to suspect that she and her sister had not been together in that room during the whole time that Mrs. Potter was there. Hence, there is nothing in this circumstance that would tend in the least degree to confirm any suspicion that he might have had in his mind that his wife had clandestinely met Webb there. If in fact she had so met another *Page 212 man there, manifestly, the situation had been so entirely changed by Mrs. Krueger's return before Potter's arrival as to afford no evidence at that time of a previous clandestine meeting. If it be assumed that the state could properly show the presence of a man in the room with Mrs. Krueger and Mrs. Potter, it by no means follows that it could also show the presence of a man with Mrs. Potter alone some time before. We can see no proper legal basis for admitting in evidence to establish the motive of the defendant for the killing of the deceased any indiscreet conduct of the defendant's wife in relation to some other man without the knowledge of the defendant.
Neither is the evidence admissible, in our opinion, as part of the res gestæ. Conceding that it was proper to inquire what Potter was doing during the evening leading up to the homicide, it does not follow that it was proper to inquire what his wife had been doing during the period of about two hours and a half prior to the shooting, especially concerning her conduct while not in his presence. We can see no connection whatsoever between any supposed clandestine meeting of the defendant's wife and some other man more than two hours before the homicide, which was unknown to the defendant, and the homicide in question. It seems to us that the mere statement of the evidence in the record, coupled with the fact that the defendant did not know of any such meeting is an absolute demonstration that it was not any part of the res gestæ. There can be no possible merit in counsel's contention that the conduct of Mrs. Potter would be admissible as part of the res gestæ, even though Potter had never gone to the Q.B. R. building. No doubt his conduct there was admissible, as well as any circumstance, having relation to the ultimate homicide, with which he was made aware at the time of his visit; but this clearly does not include conduct of his wife in altogether different circumstances. How could an act with which the defendant was in no way connected by knowledge or otherwise be a circumstance tending to show his connection with a crime? This is clearly res inter alios acta and not res gestæ.
Since the evidence was, as it seems to us, clearly inadmissible for any purpose, the next question that arises is whether or not its admission prevented the defendant from having a fair trial. The record discloses rather clearly what the effect of the evidence was likely to be. *Page 213 Previously, there had been one trial of this cause resulting in a disagreement of the jury. Upon that trial facts had been developed which showed that the defendant's wife was the only eyewitness to the shooting and was the witness who had been most familiar with the circumstances leading up to the shooting. Hence, it was apparent that the defendant would be required to rely largely upon her testimony to substantiate his theory that the shooting was accidental. If the effect of her testimony could be lessened by showing circumstances derogatory to her character, it would put her in a very unfavorable light before the jury and would doubtless affect her credibility. Of course, this is not to say that when she had assumed the position of a witness and was subjected to cross-examination, it might not be proper to ask her concerning even a criminal course of conduct with a man other than her husband. But neither, we apprehend, would it be contended that the state would not be precluded by her denial (State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L.R.A. 518, 67 N.W. 1052), independent testimony as to such collateral fact being inadmissible.
Holding the testimony admitted in this case to be admissible is, in effect, to allow the state to discredit the principal witness for the defendant by impeaching her through independent evidence. It relieves the state from the necessity of even laying a foundation by cross-examining her and entirely circumvents the rule laid down in the Kent Case, supra, which would forbid the introduction of independent evidence of collateral matters for the purpose of impeachment. Hence, if this evidence were inadmissible, as we believe it was, upon any primary issue in the case, it is difficult to see how it could have done other than to have prejudiced the defendant in his right to a fair trial. This is not a case where the record shows the defendant to have been so clearly guilty of the crime for which he stands convicted, namely, first degree murder, that the error in the introduction of such evidence can be said to be purely technical (Comp. Laws 1913, § 11,013) or non-prejudicial (§ 11,088). Upon the former trial the jury was unable to agree. The defendant's contention that the shooting was accidental finds support in the statement of the deceased to Mrs. Potter and in his dying declaration to his father.
As regards what is said in the majority opinion concerning the application for a change of venue, we are agreed with the principles stated *Page 214 in paragraph two of the syllabus, namely, that an erroneous ruling on an application for a change of venue constitutes a ground for a new trial in a criminal action; and that in a case where a motion for a new trial is made error predicated upon such ruling should be so raised. The majority opinion, however, is not placed solely upon this principle. It further holds, in effect, that the trial court was correct, or at least that it committed no error, in granting a change of venue; and that, in any event, the defendant waived the question by failing to renew the objection when the case was called for trial in McLean county. We cannot assent to these holdings.
At the outset it is only fair to state that upon the oral argument counsel for the state stated that no point was made of the fact that the question relating to the change of venue was not raised upon the motion for a new trial; that the state had no intention and no desire to urge the failure to so raise it as a ground why the question should not be considered on this appeal; that, on the contrary, the state desired to submit, and did submit, the question whether it was entitled to a change of venue upon the merits thereof.
It should, also, be noted that the application for a change of venue in this case was not submitted to or determined by the judge who presided at either the former trial or at the present trial of this case. His only connection with the case was to hear and determine the application for a change of venue. At the time of the former trial he was not one of the district judges of this state. In short, the application for a change of venue was submitted to a judge who, in the very nature of things, could have no knowledge of anything that occurred upon the former trial except such as he received from the showing made upon the hearing. In the circumstances the rule stated in paragraph one of the syllabus as to the discretion vested in the trial court in applications of this kind does not apply with the same force as where such application is submitted to the judge who presided upon the former trial. See Braithwaite v. Aiken, 2 N.D. 57, 63, 49 N.W. 419.
It is undisputed that upon the former trial no application was made for a change of place of trial and that then a trial jury was obtained without either party exhausting the peremptory challenges allowed by law.
Our laws provide that a change of place of trial may be awarded *Page 215 to either the state or the defendant in a criminal action (Comp. Laws 1913, §§ 10,756, 10,768) upon the petition on oath of the party applying for the change of place of trial "that he has reason to believe and does believe, and the facts upon which suchbelief is based, that he cannot receive a fair and impartial trial in the county or judicial subdivision where said action is pending, upon any of the following grounds: . . . 3. That it is impossible to obtain a jury in the county or judicial subdivision that has not formed an opinion, as to the guilt or innocence of the defendant, such as would disqualify them as jurors. . . ." (Comp. Laws 1913, § 10,756).
Our statute also provides:
"No person shall be disqualified as a juror by reason of the fact that he may have heard from others or read in newspapers or public journals, any statement or statements with regard to the case to be submitted to the jury, if it shall appear to the satisfaction of the court that the impression remaining upon the mind of such person from the statements so communicated to him, will not prevent him from trying the case fairly and impartially." (Comp. Laws 1913, § 10,812).
Let us examine the showing made by the state as basis for the order changing the place of trial.
The state was represented upon the present trial by the then state's attorney and a special prosecutor. The special prosecutor had participated in both trials. The state's attorney who participated in this trial did not participate in the first trial. The application for the change of place of trial is supported by the affidavits of the special prosecutor, the state's attorney and of seventeen residents of the city of Bismarck. In the affidavit of the special prosecutor this statement is found:
"This affiant further states that he has reason to believe and does believe that the plaintiff in the above entitled action, the state of North Dakota, cannot receive a fair and impartial trial of the issues in the above entitled action in the county of Burleigh in the State of North Dakota, nor in the judicialsubdivision where said action is pending; this affiant furtherstates that it is impossible to obtain a jury in Burleigh county,and this affiant verily believes impossible to obtain a jury inthe Fourth Judicial District, that has not formed an opinion asto the guilt or innocence of the defendant, such as woulddisqualify them as jurors." *Page 216
The typewritten affidavit of the state's attorney contained in the record discloses that the affidavit as prepared for his signature contained precisely the same statement as that quoted above, but that before signing it he struck out the portion which has been italicized. The affidavits of the seventeen residents of Bismarck are identical in form. The only differences in the seventeen affidavits are the names of the affiants, and the number of years the particular affiant has been a resident of Burleigh county. The affidavits were drawn with the names left in blank so as to be available for whatever person might eventually sign them. Each of the affidavits was in the following form:
" _________________________ being first duly sworn upon oath, deposes and says that he is a citizen, resident, and taxpayer of the county of Burleigh and state of North Dakota, and that he has resided in the state of North Dakota and in the county of Burleigh for _____ years last past; this affiant further states that he has reason to believe and does believe that the plaintiff in the above entitled action, the state of North Dakota, cannot receive a fair and impartial trial of the issues in the above entitled action in the county of Burleigh in the state of North Dakota, nor in the judicial subdivision where said action is pending; this affiant further states that it is impossible to obtain a jury in Burleigh county, and this affiant verily believes impossible to obtain a jury in the Fourth Judicial District, that has not formed an opinion as to the guilt or innocence of the defendant, such as would disqualify them as jurors.
That the defendant, Ray Potter, and the deceased, Oliver Webb, were residents of said Burleigh county for many years last past, and were personally and widely acquainted with a great number of persons residing in said Burleigh county, who are subject to being called as jurors; that since the date of the killing of said Oliver Webb a keen public interest has been taken in the facts and circumstances surrounding the same, and the public interest in said killing has been evidenced by general conversations and expressions of opinion as to the guilt or innocence of said defendant, almost continuously since said killing and up to the date hereof; that in the December 1928 term of the district court of Burleigh county, said defendant was tried for the crime of murder in the first degree, and the jury disagreed, and during the *Page 217 trial of said action, which consumed, with adjournments, several weeks, the public interest of the people of the western part of the state was further inspired and accentuated by the daily newspapers at Bismarck and Mandan, both of which papers have a very wide circulation, and which said papers carried daily, as leading articles, supplemented with large headlines, the report of the trial, the evidence, and all the facts and circumstances surrounding the same; that the Bismarck Tribune and the Mandan Daily Pioneer, as this affiant is informed and verily believes, cover the entire western portion of the state, including the counties west of the Missouri river, and the Bismarck Tribune particularly covers the field most thoroughly in Burleigh, McLean, Emmons, Logan and Kidder counties; that the wide dissemination of information concerning the killing, and the testimony produced at the former trial, the newspaper discussion of said case, the public interest that has been inspired in connection therewith, and the general discussion of said matter, is such that this affiant verily believes that it would be impossible to obtain a jury in Burleigh county that had not formed an opinion as to the guilt or innocence of the defendant, such as would disqualify them as jurors, and this affiant states to the court, under oath, that in his judgment the ends of justice demand that the place of trial of this action be changed from Burleigh county to some county outside of the Fourth judicial district, where the cause for change complained of does not exist.
(Signed) ___________________."
What facts are stated in these affidavits as a basis for a holding that it was "impossible to obtain a jury in Burleigh county that had not formed an opinion as to the guilt or innocence of the defendant, such as would disqualify them as jurors?" Can it be seriously contended that any facts whatever are stated except such as would exist in each and every homicide case? To say that the affidavits presented here constitute a showing of facts justifying the trial court to order a change of trial is tantamount to saying that the trial court is vested with an arbitrary and uncontrollable power to so order. But no such power is vested. The state is not entitled to a change of venue as a matter of right. State v. Winchester, 19 N.D. 756, 122 N.W. 1111.
The state is entitled to a change of place of trial only upon showing as a fact that the condition prescribed by the statute does exist; and a *Page 218 trial court has no lawful right to order such change in absence of such showing.
"The affidavit of the party applying for a change should state the facts in such a manner as to enable the court to draw its own inference whether an impartial trial can be had in the particular case. Obviously the facts stated should not be confined to mere surmises or apprehensions on the part of the party applying for the change." 25 Cal. Jur. p. 906, § 38.
The identical statutory provision involved here was construed and applied by the supreme court of the Territory of Dakota in Territory v. Egan, 3 Dakota 119, 13 N.W. 568. In that case the court said:
"The affidavits must state the facts and circumstances from which this conclusion is deduced, that a fair and impartial trial cannot be had; the court must be satisfied that the factspositively sworn to in the affidavit and not from a generalconclusion to which the defendant may swear or which his witnesses may depose they verily believe to be true."
In that case the court further held that in determining whether a sufficient showing had been made, the affidavits must be construed in light of the statute which provided that "no person should be disqualified as a juror by reason of having formed or expressed an opinion . . . founded upon rumor or statements in public journals."
An applicant for a change of venue has the burden of proof; he must establish the facts which entitle him to the relief sought, and the affidavits submitted by him must state facts and not conclusions. Curren v. Story, 41 N.D. 361, 170 N.W. 875; Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830. The affidavits in the case at bar stated no facts different from those which would exist today in every homicide case in Burleigh county where one resident of that county was charged with murdering another resident. The statute does not permit or contemplate that a round-robin shall be circulated or that expert witnesses shall be called upon to testify as to whether in their opinion it is possible or impossible to obtain a fair and impartial trial jury. That is the ultimate question which the court must decide and that decision must be based upon facts and not upon surmises, conjectures or conclusions of others. It is elementary that under a statute like ours the trial judge has no right to order a change of venue upon his *Page 219 own motion. The statute fixes the place of trial of all criminal causes and the trial court has no right to change such place of trial except upon due application supported by adequate showing. It is intimated that the trial court made some investigation of the facts, that is, in effect received evidence, outside of that submitted by the respective parties. Obviously, if this were done it was in violation of the rights of the parties. A hearing to determine whether a change of place of trial shall be had is a judicial hearing and should be conducted in conformity with rules applicable thereto. Each party has a right to know what proofs are adduced and to be afforded an opportunity to refute whatever showing is made against his interests. The place for a judicial hearing is in a courtroom — not outside of it. The time to conduct it is when the parties thereto are present or have an opportunity to be present.
There is nothing in this case from which it reasonably may be inferred that an impartial trial jury could not have been obtained in Burleigh county. The showing in this case, to the contrary, is far less, than that made in Territory v. Egan, 3 Dakota 119, 13 N.W. 568, supra. Furthermore, it will be noted that all the showing made by the state was to the effect that an impartial trial jury could not be obtained at all in the fourth judicial district. The affidavit of the special prosecutor and of the seventeen residents of Bismarck were all to this effect and the affidavit of the state's attorney was not to the contrary. He merely refrained from expressing any opinion on that question, — he merely struck out of the affidavit the statement to the effect that a trial jury could not be obtained in the fourth judicial district. Hence, the order granting the change of venue to, and ordering that a trial be had in, McLean county, was one which, in the very nature of things, the defendant could not have anticipated at all as it was in the very teeth of the entire showing made by the state. The order as made rests upon no showing whatsoever. No facts were shown warranting its entry.
There is an intimation, if not a holding, in the prevailing opinion that the defendant waived the error, if any, in granting plaintiff's application for a change of venue by not making an objection when the case came on trial in McLean county. To this we cannot assent. Under our statute a party who opposes an application for a change of venue is *Page 220 not required to renew his objection when the case is called for trial in the county to which it has been transferred. Whatever objection and exception he took at the time the order was made remain fully effective without being renewed at the time the case comes on for trial. A party is not required to make a nuisance of himself by repeated reiteration of an objection once made. In the absence of a statutory requirement to the contrary there is no waiver of an objection once made unless the party who made it subsequently assumes some position or commits some act which is so wholly inconsistent with the former objection that it must be assumed that he has departed therefrom and voluntarily assented to the course which he formerly asserted to be erroneous.