Page:North Dakota Reports (vol. 48).pdf/392

 Ind. 318; 44 Am. Rep. a9; 34 L. R. A. 257; Salina v. Cooper, 45 Kan. 12; 25 Pac. 233.

''Wm. Lemke, Atty. General, M. Tollefson, and John E. Williams'', for respondent.

, C. J. This is an appeal from a judgment of conviction and from an order of the district court wherein it denied the motion of the defendant to withdraw his plea of guilty, entered by him to the charge of murder in the first degree, contained in the information duly filed in the district court of McLean county. Subsequent to the time defendant entered his plea, the judgment of conviction was entered, and thereafter he was sentenced to imprisonment in the State’Penitentiary at Bismarck for life.

Thereafter he made a motion before the same district judge, asking that the judgment of conviction be set aside, that his plea of guilty therefore entered be withdrawn, and in lieu thereof he be permitted to enter a plea of not guilty, and to have a trial upon the merits. The motion was heard before the court in the city of Bismarck, N. D., on November 27, A. D. 1920, and on the 28th day of January, 1921, court made an order denying in all things the motion. This order was filed in the office of the clerk of court of McLean county, N. D. From this order and the judgment, defendant appeals.

A statement of the material facts is substantially as follows:

On or about the 22d day of April, A. D. 1920, at the farm of Jacob Wolff, four or five miles from the village of Turtle Lake, in the county of McLean, state of North Dakota, one Jacob Wolff, his wife, their five children, and hired chore boy, Jacob Hofer, were murdered. The instru- ment used in committing the murder was a shot gun. On April 24, 1920, about noon of that day, one Jacob Kraft called at the home of Jacob Wolff, knocked at the door, and, receiving no response, opened it and found a room in disorder, with the floor covered with blood. The dead bodies of Mrs. Wolff, Jacob Hofer, and three of the Wolff children were found in the cellar in one heap, at the bottom of the steps leading thereto. About 30 feet in front of the barn there was considerable blood, and a trail of blood ted thence into a shed attached to the barn, and there the dead bodies of Jacob Wolff, and two of his small children were found covered with hay. The bodies of the dead persons were left where found until Sunday, when an inquest was held. Photographs of