The matter should have been remanded to the district court for such action as was deemed appropriate in the light of the facts presented here. This would occasion no delay. Then, if either party should desire a review by this court of the exercise of the legal discretion vested in the district court, it could be promptly secured. The whole matter could readily be accomplished in less than a week. Meanwhile the defendant could be preparing for the trial for which his counsel says he is not as yet prepared.
The action of the majority I regard as an implied criticism on the instrumentalities of justice in this state, in which I am unwilling to join.
Christianson, J. (dissenting). In the main I agree with what is said in the dissenting opinion prepared by Mr. Justice Birdzell. By the plain words of the statute, it is the district court—not the supreme court—which is vested with power to designate the place of trial of a criminal action, when the defendant therein demands a change of trial judge and place of trial under § 10,766, Comp. Laws 1913. The power so vested in the district court is concededly a discretionary one, and this court may interfere only when it is clearly shown that the trial court has abused its discretion. Manifestly no abuse of discretion has been shown here. Nor do I understand that the majority members so hold. Their action is based upon matters which have arisen, or at least become apparent, since the trial court made the order which is assailed in this proceeding. It is true this court is, by the Constitution, granted "a general superintending control over all inferior courts," but the very provision which grants this power attaches to it the condition that it is to be exercised "under such regulations and limitations as may be prescribed by law." N. D. Const. § 86. And the same Constitution which brought this court into being and gave to it such general superintending control, also created the district courts and vested such courts with exclusive original jurisdiction in causes like that which gave rise to this proceeding. Not only so, but it has been "prescribed by law"—in plain and unmistakable terms,—that the district court is to determine the place of trial of criminal causes when an application is made by a defendant therein such as was made by the plaintiff in this proceeding. I believe that the action of the majority members in this proceeding is wholly unauthorized. If they deem the conditions, which are shown to have arisen after the district court made its order, such as to warrant the entry of an
