Page:North Dakota Reports (vol. 48).pdf/134

 Redistricting Act), is void, as violating article 4 of the Constitution. The contention is that the Legislature possessed no power under the Constitution to decrease the number of judicial districts by increasing the boundaries of each so as to embrace more counties and to increase the number of judges in each district. We express no opinion whatever on the merits of this constitutional objection to the Judicial Redistricting Act. We are satisfied that the defendant is not in a position to raise the question. State v. Ely, 16 N. D. 569, 113 N. W. 711,14 L. R. A. (N. S.) 638; State v. Bednar, 18 N. D. 484, 121 N. W. 614, 20 Ann. Cas. 458. Furthermore, if it be conceded that the act were unconstitutional and that the defendant could raise the question, there would still be no merit to the point; for it appears that the court in which the defendant was tried was presided over by the judge who, in the absence of such legislation, would have been the de jure judge in the county.

It is next claimed that the court erred in denying the defendant’s motion for a new trial. The motion was supported by the affidavit of “one Severtson, whose testimony would embrace the newly discovered evidence, and by the affidavit of the defendant. It appears that at the trial the state produced as its principal witness one Ole Tufte. He testified that on the day the offense was alleged to have been committed, he and his wife drove into the village of Southam, where the defendant was running a store; that it was on Sunday afternoon, and he stopped his car a short distance from the defendant’s store; that he saw a nian there of whom he inquired as to a place where he could get some whiskey. The man replied that he did not know, but he would see; and that thereupon this man, together with the witness, Tufte, entered the defendant’s store where the liquor was purchased, the witness giving a check for it which was written by the defendant himself. Upon his cross-examination the witness Tufte stated that the name of this man was Severt Severtson and that he resided in Southam. Severtson’s name was not indorsed on the mformation as a witness, nor was he called by the state. It appears, however, from the testimony of the sheriff, that a subpoena for Severtson had been in his hands two days before the trial, but he had not served it for the reason that the deputy had been unable to locate him. In Severtson’s affidavit he says that he is well acquainted with Koonce and with Tufte; that he never was in the defendant’s store at Southam with Ole Tufte on a Sunday in the summer of 1920; that he saw Tufte on a Sunday in the summer of 1920 buying ice cream and carrying it out of the