(dissenting). I am unable to concur in the conclusions reached by my associates in the foregoing opinion. I shall state my reasons for dissent as briefly as possible. I agree with my associates that when the defendant, in a criminal case, demands and proves his right to a change of venue by reason of tiie bias and prejudice of the judge and inhabitants of the county where the case arose, neither the defendant nor the prosecution has any constitutional or statutory right to name the county to which the action shall be sent, but that the selection of the county wherein to try the case is committed to the discretion of the district judge. I concede that in selecting the county to which to send the case the judge may act upon facts within his personal knowledge, as well as upon proof offered by the parties. In the absence of any showing to the contrary, it must be presumed that the discretion was properly exercised. This presumption in favor of the action of the trial court may be overcome, however. To hold otherwise is to vest the district judge with unlimited arbitrary power (which is synonymous with caprice) to' send a case to any county in the state, however remote from the county where the crime is alleged to have been committed. The presumption in this instance in favor of the propriety and regularity of the rulings of the district judge is in no respect different in kind or degree from the presumption which prevails with respect to the decision of that court in any other discretionary matter. The decision is presumed to be right until the contrary is made to appear. If it is made to appear in an appropriate proceeding before the Supreme Court that the discretion of the district judge has been erroneously exercised or abused, the erroneous decision or order should be set aside or corrected, whether.it occurs on a motion to change the venue or in any other proceeding before the lower court. This must be so because the discretion of the lower court with respect to the selection of a county to which to send the case is a judicial, not an arbitrary discretion, and, being judicial, must be reasonably exercised with due regard to 'the rights of the parties, and must be justified by the facts upon which the decision was based. This is a proceeding which directly challenges the propriety of the order for a change *553of venue on the ground that the district judge arbitrarily, and without any reasonable cause, sent the case to Cass county. Of all the county seats in this state, east of the Missouri river, with which Minot has direct railway communication, Fargo, the county seat of Cass county, is the most remote, with the possible exception of Wahpeton in Richland county. The petitioner alleges that there is no reason in existence to justify the selection of SO' distant a place for trial, and the place selected was objected to in proper season. When it said that there is a presumption that judicial discretion was properly exercised, it is meant thereby merely that there is a presumption, in the absence of any proof on the subject, that there were sufficient facts to warrant the decision in question. When, however, as in this case, in response to a proceeding which directly challenges the propriety of the decision on the ground that there were no facts justifying it, the lower court is called upon to disclose and certify to this court the facts upon which it based its decision, and all those facts are before the reviewing tribunal, there is no presumption in favor of the propriety of the decision under review.
The inquiry then is: Do the facts disclosed justify the decision? So, in this case, the district court was required by the order to show cause to disclose to this court all the facts which were before it, and upon which it relied, as a reason for selecting so remote a place for trial as Cass county, instead of some one of the several nearer counties. In obedience to the order the lovyer court has set forth in the return all the facts which it asserts warranted its decision. The question before this court is: Do the facts set forth in the return warrant the selection of Cass county in preference to some nearer county. I am very clearly of the opinion that the facts stated in the return were utterly insufficient to justify the selection of Cass county, and disclose a clear case of abuse of discretion. It seems to me too plain for argument that, when a change of venue becomes necessary by reason of local prejudice, the district court cannot rightfully send the case for trial to a place more remote than is necessary to secure a fair and impartial trial. The disadvantages of a trial far remote from the scene of the alleged crime are obvious. It is not merely a matter of expense, although that is an important item. Every lawyer of experience knows how often during the progress of a trial some unforeseen emergency may arise which renders it imperative to get additional testimony to refute or corroborate some other testimony which *554■has been unexpectedly disclosed at the trial, or to obtain information to enable counsel to effectively examine or cross-examine witnesses whose presence or whose testimony is a surprise. These reasons, and others which might be suggested, render it highly important that the trial should take place no further from the scene of the alleged -crime than is absolutely necessary. The legislature has wisely left it to the discretion of the court to determine on the facts of each case how far from the county where the case arose the trial shall be had in order to avoid local prejudice, and I think it is clear that the distance it may be removed is impliedly limited to that required in order to obtain' a fair and impartial trial. Such is the holding in New York under a similar statute. See People v. Baker, 3 Parker, Cr. R. 181, 198; s. c., 3 Abb. Prac. 42, 56, cited in the majority opinion. In that case it is said: “Ordinarily, where the place of trial is changed, an adjoining county should be selected, and so the authorities declare. However, there is no express limitation, and, if the necessity which may require any change should call for a more remote county, that should be selected.”
I maintain that the presumption is that a fair and impartial trial cair be had in any county in the state until the contrary appears. That being so, it was the duty of the court to select the nearest and most accessible county to Ward county, unless some valid objection to the selection of that county existed. The presumption being that a fair and impartial trial could be had in any other county than Ward, it is clear that the burden was on him- who asserts the contrary to overcome the presumption. Hence the question in this case is: Do the facts disclosed in the return furnish a valid reason for passing by the several counties near to Ward and selecting a place of trial 284 miles away? In my opinion, if the facts disclosed ¡by the return do not show a sufficient reason for passing over near-by counties, then it was an abuse of discretion to select a remote county in preference to a near one. The nature of the showing of local prejudice was such that it gave good grounds to claim that the prejudice extended to all the counties in the Eighth judicial district, and the district judge states in his return facts within his own knowledge which it may be assumed show that a fair and impartial trial could not be had in the Second judicial district, which, until quite recently, included the counties now constituting the Eighth judicial district. The only reason assigned for not selecting some county in the Fifth district, where the county seat is on the main line of the Minneapolis, Saint Paul & *555Sault Ste. Marie Railway, and thus easily accessible to Minot, is that the judge of that district is a brother of one of the attorneys for the defendant. If is needless to say that that reason is insufficient. It cannot be supposed that a district judge will be influenced in his conduct as a judge, in the trial of a criminal case by his relationship to one of the attorneys. If, however, it was undesirable to send the case to Fessenden, the county seat of Wells county, in the Fifth judicial district, which county seat is only eighty-nine miles from Minot, I am unable to discover why one of the two counties in the First district should not have been selected. No reason whatever is assigned why the case should not be tried in the First district. Lalcota, the county seat of Nelson county, is only 142 miles from Minot, on the main line of the Great Northern railway, and Grand Forks is 206 miles from Minot, on the same line.
It seems unreasonable to me to assume that the political strife which created the prejudice against defendant in his county and judicial district had become so widespread and general as to taint with prejudice any appreciable portion of the inhabitants of other districts not affected by the questions which created the strife in Ward county. But, even if such a condition of affairs were possible or reasonably probable, it is not claimed that such is the condition in this case. It is not pretended that a fair jury could not be had in either the Fifth or First districts. As stated before, I assert that the propriety of the court’s decision must be tested by those facts, and those alone, which are shown in the return as grounds for his action. The facts stated in the return are not disputed by the petitioner, and hence we are called upon to determine only the legal sufficiency of the facts alleged by the district judge to warrant his decision. In this case, as in any other case before an appellate court, we cannot go outside the record and assume the possible existence of other facts than those disclosed by the record, in order to sustain or reverse the decision under review. The fact that perhaps a speedier trial could be had in Cass county than in any other is in my opinion no sufficient reason for the selection of that county. It is doubtless true that the speedy disposition of the case is a desirable thing, and under some circumstances would be a good reason for preferring a more distant county than a nearer one. I maintain, however, that, where the trial is not likely to be delayed for any great length of time by selecting the nearer county, then the mere fact that the case may be *556tried in the distant county a few days or weeks sooner than in the nearer is no reason/ ■whatever for selecting so distant a county.
(105 N. W. 728.)Finally, I cannot agree with my associates in the holding that the defendant, when he was /informed' that the district judge had selected Cass county, should have offered proof that the nearer counties were unobjectionable. As already stated, the presumption was that a fair trial could be had in any county other than those of the Eighth judicial district. It was not necessary for the defendant to reinforce the presumed fact with corroborative proof. If the reasoning of. the majority were true, then a defendant who obtains a change of venue for local prejudice must come prepared to show by proof in what counties a fair trial can or cannot be had; and this, even though no one questions the presumed fact that a fair trial can be had in any county. Neither can I agree with' the opinion of the majority that the petitioner is not in a position to obtain a review of the decision of the district court because he did not first make a formal motion for reconsideration of the selection in that court. The district judge assumed to select the proper county without the aid of any suggestion from counsel, or any proof that the near-by counties were objectionable. He acted upon his assumed knowledge of the facts. What those facts were he did not disclose to the parties below. How, then, could the defendant below offer proof in support of a motion for reconsideration, when he was ignorant of what undisclosed reasons for the selection were in the mind of the judge?
The petitioner asserts that there could not have been sufficient reasons in the mind of the court. He takes the position that he is willing to concede the truth of all the facts which the district judge alleges in this court as reasons for the decision, but contends that those facts, instead of supporting the decision, show an abuse of discretion. In other words, his only contention is that the undisputed facts show an abuse of discretion. In my opinion his contention is clearly sound, and the relief ought to be granted.