Opinion
Cr. No. 443.
April 19, 1973. Rehearing Denied May 4, 1973.
Allen I. Olson, Atty. Gen., Bismarck, and Richard B. Thomas, Ward County State's Atty., Minot, for plaintiff.
Bosard, McCutcheon, Kerian, Schmidt Holum, Minot, for defendant.
The defendant has moved that this court rescind its order of January 4, 1973, appointing the Honorable Eugene A. Burdick, District Judge, as the trial judge in the above captioned case.
The motion is grounded on the claim that the demand for a change of judge, made by the State pursuant to Section 29-15-21, N.D.C.C., erroneously stated that the previously assigned judge had not ruled upon any matter pertaining to the action or proceeding on which the moving party was heard or had an opportunity to be heard. In support of its claim it is pointed out that, prior to the demand for a change of judge, the defendant was arraigned and that at such arraignment proceeding the defendant orally moved for a dismissal of the action on the ground and for the reason that certain questions asked by the court elicited answers from the defendant as to his age and marital status, both of which, it is claimed, are crucial elements of proof of the charge upon which the defendant was arraigned, to wit, rape. The motion was denied. This ruling on the part of the arraigning judge, it is argued, constitutes a matter pertaining to the action in which the State, although it did not reply or resist the motion, nevertheless had the opportunity to be heard.
The state's attorney, representing the State in resistance to the motion, agrees that it was incorrect to state in its application for a change of judge that the judge sitting had not ruled upon any matter pertaining to the action in which the State had an opportunity to be heard, but that such error occurred as a result of lack of communication between the state's attorney and the assistant state's attorney; that the assistant state's attorney handled the arraignment proceedings and the state's attorney made the demand for a change of judge and, in the preparation of the demand, he reviewed the office file on the case and found no reference to the motion contained therein.
We are also advised that the Honorable Eugene A. Burdick, the judge designated, has accepted jurisdiction and has set the matter for trial at the next term of the Ward County District Court. The attorney for the defendant orally informed this court that neither he nor the defendant had any objection to the Honorable Eugene A. Burdick as presiding judge in the trial of this case. It further appears that subsequent to this court's appointment of the Honorable Eugene A. Burdick the defendant entered into a stipulation for a continuance of the case over the term, which stipulation was presented to the Honorable Eugene A. Burdick as presiding judge with a request that he sign an order continuing the same over the term, which order was duly entered.
For these reasons, although we do not condone the state's attorney's erroneous statement contained in the demand for change of judge presented to this court, we nevertheless deny the motion and reaffirm our order designating the Honorable Eugene A. Burdick as the presiding judge in this case.
STRUTZ, C. J., and ERICKSTAD, KNUDSON and PAULSON, JJ., concur.