Page:North Dakota Reports (vol. 48).pdf/592

 imposed, defendant moved for a new trial, which was denied, and he has appealed from the judgment and from the order denyihg a new trial.

The first assignment of error is to the effect that the court erred in appointing and permitting Fred J. Traynor to act as special assistant state’s attorney in the prosecution of the case over the objection of the defendant. This question was considered upon a former appeal in this case. See State v. Stepp, 45 N. D. 516; 178 N. W. 951-953. As appears from the opinion in that case, Mr. Traynor was appointed by the district court as assistant state’s attorney and assisted in the prosecution upon the first trial of the case. After the case was remanded by this court for a new trial, Mr. Traynor was appointed an assistant attorney general for the purpose of assisting in the prosecution of this case, such appointment being made by the Governor under chap. 20, Laws Special Session 1919. The record also shows that the judge who presided upon the trial of this case heard both the state’s attorney and the counsel for the defendant be- fore he made the order appointing Mr. Traynor to assist the state’s attorney in the prosecution of this action. We are entirely agreed that in the circumstances the trial court did not err in making such order.

It is next contended that the conviction should be set aside for the reason that the defendant did not enter any plea to the information before the commencement of the trial, and was not afforded an opportunity to do so. In support of this contention the defendant points out that the record on this trial of the action does not show that the defendant either entered a plea or was afforded an opportunity to do so; also, that the record shows that upon this trial defendant's counsel made an oral motion to quash the information on the ground that it did not state facts sufficient to constitute a public offense, or any offense, under the statute. It is contended that when the defendant moved to quash the information, he in effect withdrew any plea formerly entered; and that the consideration and denial of this motion by the trial court, in effect, amounted to a recognition of such withdrawal. In our opinion these contentions are not well founded. The record shows that prior to the commencement of the first trial, namely, on June 17, 1919, the defendant entered a plea of not guilty to the information. By such plea an issue of fact was framed, which was tried at that time. On appeal to this court the conviction was set aside because of certain errors in the conduct of that trial, and the cause was remanded for a new trial in order that the defendant might be afforded a fair trial. The issue raised by the plea of