(dissenting). The application presented by this case is that this court issue “a supervisory writ requiring the district court of Burleigh county and Honorable W. H. Winchester, as the judge thereof, to certify to this court the records, files, and proceedings in a certain criminal action entitled the State of North Dakota v. Duncan J. McGillis, to the end that said records, files, and proceedings may be reviewed by the Supreme Court, and justice may be done in the premises.” In response to an order to show cause issued from this court the respondents filed a return in which, after a lengthy showing directed entirely to the end that the Attorney General is not entitled to the writ applied for, they “protest that they shall not be required to transmit to this court, or be commanded to do so, all the pleadings, orders, affidavits and records in said action of the State of North Dakota v. Duncan J. McGillis and all the records of proceedings had in the said criminal action, or any of them, and ask thafi said application therefor be disallowed and dismissed.”
In my view the only point presented to this court for decision is that of whether or not upon the application and showing made by the Attorney General the writ of certiorari should issue. The Attorney General does not make specific application for this writ; but it is apparent from his moving papers that the writ of certiorari is the only supervisory writ under which he oan receive any relief *548whatever. This being the case I think the application should be read as though it were expressly made for a writ of certiorari from this court to the district court of the Sixth judicial district. I believe that jurisdiction of this court to determine any of the points passed upon in the majority opinion is dependent entirely upon the writ and cannot be acquired by any other means. The moving papers, both of the Attorney General and of the respondents, are directed entirely to the point of whether or not the writ shall issue. The Attorney General applies for the issuance of a supervisory writ and the respondents protest against it, and direct their entire showing to the point that they should not be required to do the things that will be required of them in case the writ issue.
The majority opinion seems to proceed on the theory that an oral stipulation of counsel made on the hearing to the effect that the proceeding may be disposed of on its merits on the showing made dispenses with the necessity for the writ. This stipulation can-have the effect of waiving the writ provided only that it appears the full purpose of the writ is accomplished by the return. It is apparent at a glance that such is not the case. Fragmentary excerpts from the record that was before the district court, together with the 'conclusions of persons interested in the outcome of this proceeding as to what the record contains and the legal construction to be placed on the statutes involved, cannot be said to bring before this court the evidential facts on which the district court acted. Yet the return contains only this as appears from the opinion of judge Spalding.
I regard it as a matter of the highest importance that this •court in deciding any of the very important questions presented upon this proceeding should -have before it the entire record acted upon by the judge of the district court. Further than this, I .believe that without such record this court is without jurisdiction to make any order in any manner affecting the ruling of the judge of the district court, whether he has regularly pursued the authority of such court or not. I can think of no reason deserving of the slightest weight why questions affecting the sovereignty of the state should be disposed of upon an incomplete, mutilated or imperfect record when this court has full power by . the issuance of a prerogative writ to bring the entire record before it.
*549(122 N. W. 1111.)So far as the question may be properly considered, as to whether or not a judge of the district court is vested with a discretion authorizing him to deny a change of venue in a criminal case when application is made therefor by the Attorney General, as is shown to have been made in this case, I fully concur in the conclusions reached by Judge Spalding. If such discretion is conceded to exist, however, upon the question of whether or not the district court abused its discretion in denying a change of the place of trial in the case of State v. McGillis, I am of the opinion that this court is precluded from taking any action whatever by reason of the fact that it has not before it the showing made to the district court. The application of the Attorney General upon its face discloses a state of facts which unquestionably authorizes this court to issue a writ that will enable it to fully review these interesting and important questions, and in my opinion the writ of certiorari should issue.
NOTE.
Affidavit for change of venue must state facts not conclusions. Ter. v. Egan, 3 Dak. 119, 13 N. W. 568; State v. Chapman, 1 S. D. 418, 47 N. W. 411; see also State v. Palmer, 4 S. D. 546, 57 N. W. 490. A trial does not begin until a jury is impanneled; and a change of venue may be had at any time before then. State v. Kent, 5 N. D. 516, 67 N. W. 1052. Relying on verbal promise of attorney, and allowing time to answer to expiré, precludes change of venue, 8 S. D. 11, 65 N. W. 34. Change of venue in civil action for convenience of witnesses, may be granted on application of one co-defendant the other not objecting. Fletcher v. Church, 11 S. D. 537, 78 N. W. 947. See also Small v. Gilruth, 8 S. D. 287, 66 N. W. 452. Need not send to adjoining county whose courthouse is nearest. Waldron v. Evans, 1 Dak. 11, 46 N. W. 607. Judge not limited to adjoining counties. Murphy v. District Court, 14 N. D. 542, 105 N. W. 738. Duty of selecting place of trial is with the judge in the exercise of a sound discretion. Murphy v. District Court, 14 N. D. 542, 105 N. W. 728; Zinn v. District Court, 17 N. D. 135, 114 N. W. 472. Where discretion is vested in the trial judge his act will be reviewed only for abuse, Murphy v. District Court 14 N. D. 542, 105 N. W. 728. Order for change of venue is appealable. Robertson Lumber Co. *550v. Jones, 13 N. D. 112, 99 N. W. 1082. Facts sufficient to order change. Id. The “right to trial by jury” is subject to change of venue at the instance of the state. Barry v. Truax, 13 N. D. 131, 99 N. W. 769. Statute authorizing a change of venue at the instance of the state is constitutional. Barry v. Truax, 13 N. D. 131, 99 N. W. 769; Zinn vs. District Court, 17 N. D. 135. Change of venue in justice court cannot be had after overruling of demurrer. Walker v. Maronda, 15 N. D. 63. State may have change of venue under the same circumstances as defendant. Zinn v. District Court, 17 N. D. 135; 114 N. W. 472.