*1 256' McGRAFF, MAE Admin McGRAFF, ANNA

ANNA MAE McGRAFF, EARL MELVIN the Estate istratrix Mc WILLIAM Respondents, Deceased, Plaintiffs v. of WILBUR C. the Estate GILLVRAY, as Executor Appellant. COOK, Deceased, Defendant No. 9885. (2d) 478. 339 Pac. April 9, 1959. January 7, 1959. Decided Submitted 2, 1959. Rehearing June Denied dissented. ADAIR and BOTTOMLY MR JUSTICES appel- Helena, for Acher, P. Rankin, Arthur Wellington D. lant. *2 orally. argued Arthur P. Acher

Wellington D. Rankin and respondent. Ryan, Lodge, for Keeley, McElwain & Deer argued orally. Joseph A. McElwain

MR. ANGSTMAN: JUSTICE denying his by an order appeal

This is an defendant from change motion for of of trial. County, in behalf of the brought in

The action- was Powell McGraff, damages wrong- for his heirs of Melvin Earl to recover McGillvray alleges complaint ful death. that defendant Cook, deceased; the Wilbur now executor-of the estate of C. unlawfully August 19, 1956, wilfully, Cook, that Wilbur C. on a wrongfully and shot Earl McGraff and Melvin with- killed. put by 25-35 in the allegation Winchester rifle. This was issue defendant, answer of and an defense was asserted affirmative .effect, it to the that if Wilbur C. Cook killed Melvin McGraff filing answer, At the was done in self-defense. the time of de- fendant a of venue in which was filed motion alleged impartial “an trial cannot be that defendant believes in had of Powell.” support motion, of defendant filed own affidavit Cook, Sandy of O. Rierson and A. G. and

and the affidavit in that asserted the motion it would be based also on such oral hearing testimony may on the motion. be introduced at A. forth The affidavit of G. Cook set that he is not related Cook; vicinity Avon; that that Wilbur C. he lives that man evening ón the Melvin Earl McGraff and another fishing named Homer B. Garren been shot and killed while had near the Wilbur Cook ranch in Nevada' Creek County, posse by county was formed sheriff' of that was instituted for Wilbur C. Cook since “it search was as- fishermen;” sumed that he had killed the two that Wilbur C. killing of the posse; that the Cook was shot and killed con- news, furnishing topic people three sensational was broadcasting subject radio versation mouth and a word of investigation as to that there was no newspaper publicity; had shot until after the who killed the two fishermen matter Cook; that affiant has heard the and killed Wilbur C. all parts from discussed residents highly public feeling against Wilbur C. Cook hostility feeling inflamed; general that there exists a newspaper and prejudice against Cook; Wilbur C. murder; guilty publicity radio all assumed Cook parts county express that he residents from all of the has heard opinion fishermen, Garren that Cook killed the two this is the McGraff, justification and that without cause county; the executor of Cook opinion fixed in Powell a fair and estate could not have bias, hatred County by feeling prejudice reason county; that a would be which exists *3 consciously unconsciously general public aware the senti- or of by the at- ment and thus would be influenced Cook mosphere prejudice. of Pierson, gasoline operates service sta-

The affidavit of who that A. Avon, general the same character as of G. tion at was of Cook. defendant administrator was also of the same

The affidavit of except A. that it set out that the tenor as that of G. Cook but also the only included not the sheriff of game state fish and county coroner, highway patrolmen, several sheriffs, private a number citi- employees, deputy several of Prison Talbot, an attache of the Montana State George zens and trained bloodhounds which were who owned and maintained Cook; used to locate whereabouts of Wilbur C. that Cook volley six fatal from received or more wounds of shots fired posse; that Montana,Standard, members of a Butte daily Post, newspaper, weekly published Silver State county up in that widely wrote events which were circu- in in these articles parts county; lated and all that read guilty mur- that had been assumed and stated dering McGraff Garren. opposition motion, plaintiff to the filed an affidavit of Helmville, Coughlin, being

Maurice in the north- who resides at part county. ern that has read and heard He stated he prejudice opin- about the case but or bias or fixed knows of no part “any appreciable ion on the number of residents” preclude having which would Cook or his executor from a fair County; general trial in Powell that there is no feeling hostility prejudice against or Cook. plaintiff pub- Gehrett,

Likewise filed an affidavit of J. 0. lisher Post, of the Silver State which contained same matter as' Coughlin except the affidavit that it recited addition published paper article but a factual ac- count of given the matters to him involved the sheriff. Hendricksen, Vic who resides in the south county, end made affidavit he read of the death of McGrath and Gar- ren; that newspaper, communication radio and word of mouth was no more than such an normally incident would bring coverage; news that the executor “could have a fair and impartial and that there is no feeling bias, prejudice hostility and hatred which exists” in the and “that if a were try selected mat- ters here they involved would not be by any influenced at- mosphere prejudice, since none exists in this county.” Quasi

Thelma made affidavit similar to that of Vie Hendrick- sen. Valiton,

Don agent insurance and state senator who comes many people contact with from all parts of county, made affidavit similar of Vic Hendricksen except additionally he asserted that he had heard discussion about the incident and *4 expressions that the and statements type were not of a cause public feeling to be so prohibit inflamed as to a fair im- partial County; upon that based his conversa-

260 with, evidence of county he has found no people tions in the opinion against public inflamed Cook. sheriff, a Darrow, wit hearing motion, At the on the Ed killing to the plaintiff, leading up ness for recounted the events testimony posse. of the In substance Cook members Garren finding was: of McGraff and addition to bodies place near the they jeep wagon found station had been burned cartridge cases found; they where the also found bodies were two was the gun that had from 25-35 calibre which been burned they night of a at gun Cook; spent calibre owned morning went jeep where the been and the next had burned Cook; they bam; him in he noticed found home lifted and doorway a rifle barrel in the and saw that it was up again; raised he to the and then went down called back asking out person him to come the bam several times hurt; he not be toss his out and that if he did so rifle would thereafter, obtaining sheriff; upon no he told him he was the teargas response person he shells from the in the barn fired bam; firing then outside started stepped into hit members of one of the he had instructed posse; member they any shooting; he when first met not to do1 said nothing else to do shooting when Cook started there defend; but shot and killed posse thereupon members of the Cook.

Newspaper pictures 22 24 August articles contained they Among posse. and the names other details stated slugs possemen and tests of taken from one of the ballistic body one fishermen were fired Cook’s from the rifle, and found the fisher- empty cartridge also cases around fired in rifle. wagon men’s burned station were Cook’s also The rule is well settled that the matter granting or refus

ing motion for of venue the sound dis rests cretion of trial court that its decision will be disturbed only appears when it that the court has abused its discretion. Independent Publishing Co., 163, Torstenson v. 86 Mont. 282 861; 257, Kennon Gilmer, Pac. v. 5 Pac. Am.

261 603; State (2d) Rep. 45; Lund, 169, 93 18 Pac. State v. Mont. Bonners 421; Atkinson v. 426, 60 199 Davis, v. Pac. Ferry Co., 393, 240 Pac. 823. Lumber 74 Mont. relating the issue of whether

Here vital the evidence meaning may fair within be had defendant, best, standpoint of section 93-2906 was at from the conflicting. finding for a so, ordinarily

When this is there no basis is denying that the its trial court abused discretion motion. foregoing defendant, recognizing

Counsel for as while general conclusively rule, assert that the facts here show prejudice that there he against Cook else would not have accept been killed. Were towe the conclusion contended for prejudice against counsel for defendant so far Cook is help must, concerned it would not here for defendant we before justification we can trial court, reverse the find some for ex- tending prejudice here, to the defendant the executor of prejudice Cook’s estate. As to such is conflicting. evidence showing There no prejudice facts extends the against beyond grave. far this So record goes, those, any, if prejudiced who hated Cook were him had their prejudice put hatred or satisfied when he was death. indulging speculation We would surmise and were heirs, we to conclude that legatees devisees or of Mr. Cook could not have a fair trial un because circumstances any folded in the If record. there be evidence that the executor cannot have a fair trial is at there least as much evidence the way. other majority The think of this court the trial court did not abuse denying its discretion in motion.

The word “must” as. used in section 93-2906 does not solve problem suggested before us as in the dissenting opinions. duty upon devolved the court to determine whether showing had been made to sustain the conclusion that “there is reason to believe that an trial cannot be had” in (cid:127) where action pending before a change is.

venue, Serv Credit granted. The of Merchants must bé. cases 229, 114 Pac. 112 Mont. County Bank, ice, Inc. v. Chouteau 100, McCarthy, 86 Mont. (2d) 1074; rel. O’Connor v. State ex Court Superior v. 108, 282 1045; State of California Pac. (2d) and County Francisco, App. City Cal. San Mr. opinion of dissenting (2d) 1322, relied on 58 Pac: “must” were of the word meaning Adair sustain the Justice there, was m> dis plainly dealing cases with a where statute '..... . . .. '. court.. cretion vested-in the here. we have before us the effect of the statute Such not *6 dissenting it in substance opinions In- is asserted thé' posse. was-summarily tried, and executed convicted 'Cook that, erroneously assume opinions those The authors of guilty the sentence of posse"adjudged guilty and executed n becausehe killed are not the facts. McGraff and Garren. Such killed Mc- having for guilty found or executed Coolv-was. not conclusively fishing it Garren. Had had partner Graff and his kill that would not have that he did these fishermen shown ' posse. That not the his is justified killing at the hands of shot, according why posse.’ shot He reasom Cook was to;the submitting to arrest us, instead of before because record posse at the and after spraying the bam bullets he came out'of actually .striking one bullets and this of them with one not be harmed if he came out being would after assured he showing This stands uneontradieted unarmed. the bam the record. Mr, is opinion Justice Adair it dissenting in the

Likewise try to erroneously jury that the which will chosen assumed posse. The consisted of case to be drawn from is registered voters Powell Coun 3,529 There were fifteen men. justified judge district ty for the election of 1958. The impartial jury 3,500 could voters concluding that out of these be selected. Bottomly dissenting opinion of Mr. Justice seems to be- by plaintiff. filed shall opposing

little affidavits We not by setting them out in full. It opinion this is sufficient prolong have a can just positive that defendant say they are to that he cannot. are affidavits trial in fair abused conflict, say that the trial court On this we cannot To of venue. denying its the motion discretion judicially from con- obliged would be determine do so we jury from flicting affidavits that a fair cannot be obtained this County, than thousand in Powell more three voters years six from the lapse after of about two months to which the affidavits relate. time conclusions, might minds

Where reasonable reach different prefer grant we such motions rather than take a chance of depriving party fair trial. of a

Since two members of the court think the motion should granted every

have been and since member of assuring desirous of defendant fair trial we have concluded permit develop if defendant to renew his motion that a fair cannot be obtained.

This is practice. not an unheard of It was done in Buck v. Reighard, 1949, (2d) 302, Ohio Pl. Com. 85 N.E. and we rec ognized principle by allowing the motion to be renewed granted grounds Searle, when we a new trial on other in State v. (2d) 239 Pac. appealed The order from affirmed. *7 CASTLES,

MR. THE JUSTICE GUY HONORABLE DERRY, C. Judge, District sitting place MR. CHIEF HARRISON, JUSTICE concur.

MR. JUSTICE BOTTOMLY:

I dissent.

This is appeal denying from an order of district court change the motion of the defendant for of trial. brought County

The action was on of the Powell behalf heirs Earl damages wrong- of Melvin McGraff to recover for his ful death.

The other repeated facts need not be here. County question can be

There no but the whole of deeply killing Bari Mc aroused over double of Melvin Garren, by. killing of Graff and Homer B. climaxed .county) posse (or power Wilbur of the C. Cook comitatus County. formed and commanded sheriff of Powell Wil suspected killing Earl Me bur C. Cook was of Melvin B. Graff and Homer Garren. publicity given throughout Powell

With the wide press, purporting of these to assert events radio all men, Wilbur had the two and a facts Cook murdered running happenings account of the of the comitatus bloodhounds, together with reaction talk. many friends, posse comitatus, members their relatives and being spread throughout County, it would seem to be anyone standing in quite impossible natural and the shoes representing impar- of and Wilbur C. to have a fair and a jury citizenship tial trial before summoned from the of Powell all, most, all not transpired, where this and where if the witnesses defendant no doubt will come. McGillvray, William executor of the affidavit of Cook, deceased, estate of Wilbur in connection with his mo- C. venue, tion for a is as follows: McGillvray, being duly sworn, deposes says: “William “That duly appointed, qualified acting he is the Exe- Cook, deceased; cutor of the Estate of Wilbur that he was C. appointed Exeeutor of the Last Will and Testament of said September Wilbur C. Cook on

“That said Wilbur C. Cook was the owner of and resided upon property County, ranch in Powell Montana, situated on Nevada in a area; Creek mountainous property that said strip approximately located so one-fourth mile wide and quarters long three of a mile lengthwise by was traversed Creek; course of Nevada that said Wilbur C. Cook had cabin buildings upon and-a barn and other out said lands; that ad- joining and to the north of said lands was certain property Keiley known as ranch. *8 McGraff Earl 19, 1956, August

“That Melvin on or abont death met their who fishermen, and Homer B. were Garren lands near the on or gunshot from Nevada Creek' wounds beside County Cook; C. that the of Powell the said Wilbur Sheriff men had scene, the upon being to the concluded that called posse Cook; that a was by been said Wilbur murdered C. for by Montana, to look County, formed Sheriff of the Powell Sheriff, Cook; said posse Wilbur C. that the included the County, Highway Powell Patrol- Coroner, several men, Talbot, Employees, George State Fish and Game an attache County, of Montana Lodge State Prison of Deer and Powell Montana, who owned was and maintained and skilled thé handling tracking persons, of trained bloodhounds used in sev- deputy eral private sheriffs citizens; and a number of that throughout night posse search, continued its and on the morning August 20, 1956, airplanes one or more were employed by the fly authorities to over the area; mountainous pilot that reported a seeing then jeep on the ground near the premises ranch of said Wilbur C. Cook which was ascertained was his jeep; thereupon approximately members fifteen posse, including the Sheriff of County, the Coroner County, of Powell George the said Talbot with bloodhounds, several other officers, private and several citizens went to the buildings ranch Cook, said Wilbur C. where he found; was that said Wilbur C. was not arrested so that he could be brought trial, although surrounded more tha/n fifteen men; armed public feeling high was so and the minds posse were so inflamed, he was shot and killed, receiving six or volley more wounds shots mem- fatal from fired posse. bers

“That immediately after the bodies of the two fishermen found, were they fact that had been shot and that searching radio, killer, widely publicized mouth; word of the minds of people of were inflamed Wilbur Cook; C. póssé that included two relatives of the deceased fishermen; that the in- *9 Cook feeling against by

tense him that is evidenced the fact and, tried; shot that the without being killed arrested and Itvas slaying suspect search and was the the Wilbur C. Cook the of subject of in The Montana Stand- lengthy newspaper articles ard, daily Butte, Montana, having a a newspaper published at large in County, Montana, also the circulation in Powell county; Post, weekly published Silver in the newspaper State parts in of widely that both of said all newspapers are read that county; newspaper the that the was assumed accounts he the guilty Wilbur C. Cook murder and that had been of Garren; Homer G. person who killed Melvin Earl MeGraff and of killings parts that in all radio of were heard broadcasts the the county. sixty-two years age of who

“That affiant ais rancher over life; County all of his and has resided was bom people talked has with acquainted affiant is with and that County discussing this mat- and from parts all of from County, that a knows parts from all people with ter immediately hostility existed prejudice and strong feeling of against Wilbur C. Cook and killing had occurred after guilty murder; that that he was of conviction general in- incited and were so people of of minds feeling of hatred existed general prejudice and flamed that a prejudice Cook; feeling that said Wilbur C. against of thereof, the reason exists and against Cook still defend- ,iant impartial the above entitled home ca/nnot fair ,cases against Wilbur feeling said prejudice said reason of n C. any jury picked in Powell strong that so Cook is consciously prejtcdice feeling would influenced n unconsciously. alleges upon information and belief that “That affiant eases should be transferred to some other above-entitled two publicized widely matter was not so county and dis- where hostility prejudice feeling and where cussed Emphasis supplied. does not exist.” Wilbur C. said Cook, no Cook, of A. G. relation of Wilbur affidavit C. Sandy Rierson were deceased, the affidavit of "William as the affidavit general character same affirmative McGillvray. hy Wil- followed every Here, requirement of the statute (cid:127) Cook, of Wilbur C. McGillvray, as executor of the estate

liam deceased, for a venue. from filed affidavits were opposition to the motion several generally stating county

officials and other residents of the McGillvray, executor why reason William there no a fair and Cook, deceased, cannot have estate Wilbur C. county.. only trial in their officials It natural any and residents that or other should defend good county. and'against It surprising name of their would be they human nature if did not.

But in affidavits, this case the counter with accumu- their negative statements, lated positive not overbalance the should defendant; statements of of weight facts it is the. of the the. rather than evidence number of controls, the witnesses that just as it is a of rule evidence that the affirmative statements persons of who swear to the existence of facts are entitled to greater credence than many the -of persons are. statements merely who deny the existence fact or facts in dispute. posse eomitatus, Here whole residents County, hunting were the suspect, for Wilbur C. Cook. found, He was manner; but not arrested to be in a lawful tried Yet he was surrounded men, some -upon fifteen armed who- sight opened fire and Wilbur C. Cook-was killed. anyone say

Can that the hatred, and the feeling preju- and dice people being aroused to such a pitch against fever Wilbur C. Cook would not naturally carry against over and interests wishes of Wilbur C. Cook, rep- person resented in standing Wilbur C. Cook’s shoes and

stead question as executor? To ask it; answer course being- human is, nature what it people of Powell Comity unconsciously would be -prejudiced against representative his only degree a lesser than against himself, if he were present; Under" trial still be the circumstances here this will against Cook, wishes, Wilbur C. will and not McGrillvray. William

Every knowledge lawyer seasoned trial of his own knows and experience^ is true. of similar circumstances that this

It importance of the utmost the constitutional and trial statutory rights person impartial of a to a fair and should protected preserved be ac- recognized, on the defendant’s secondly public count- in first instance, so faith judicial inviolate, in our institutions remain for assurance justice destroy nothing quickly will so confidence destroy order as would a be- quickly our courts so law and or injustice dominated courts. Under lief our that unfairness original applicable our of Civil Procedure of Code 615) which was taken (section change statute for venue (section 397) California, whose statute for from word word pertinent here, reads as same, follows: still reads the which ” motion, change of trial in the may, on The: court * * *- eases: following that an is reason believe “2. When there Emphasis supplied. therein.” had cannot until 1903 at which time remained effect This law Eighth regular requested the session -Montana -of governor laws, three fair trial Assembly pass Legislative the Montana judges (now district section disqualification for the one (now adequate of venue con- 93-901), one was 93-2906), third, making and the 1947, section in ft.CM. tained - equity duty supreme cases matters *11 it of questions all review of equitable nature to an of proceedings in (now contained law, etc. E.C.M. questions of well as fact as 93-216). .1947, section pass 1903 failed to regular session of the above-men-

The whereupon governor laws, legis- trial called the fair tioned session, they extraordinary still failed to pass in -back lature adjourned. Again governor the- called them same, back and the: Extraordinary 1903 Session of at which session Second to-the

269 Chapters 1-3 of the passed as three fair trial laws were Montana, Extraordinary of the State of Second Session Laws subjects re- therein and became the law Montana of on spectively treated. regard ques- very is pertinent

It therefore to note here, presented by right tion not this whether or defendant by trial. changing place and law entitled order 615 It will be that section of the Civil Code observed effectively Montana 1895 amended materially and 1903, 2 Chapter Extraordinary Session of said Second striking “may” permissive substituting word the man- and datory (93-2906) word “must” therein that the section after so the amendment now reads: must, judge motion, change place “The court or on * * *

trial following cases: impartial “2. When there is reason to that an trial believe Emphasis supplied. cannot be had therein.” provisions mandatory The require section are judge district trial after a meritorious pleading motion and has filed. been The court cannot act of its only own motion but after the therefore pleading motion Holloway speaking are filed. See Justice this Court, State ex rel. 188, Gnose v. District 75 Pac. 1109. When, here, many there were so affidavits filed in the mat- ter on showing both sides such a reasoning difference surely when this court divided on the matter there is reason impartial to believe that trial ecmnot be had fair County. in Powell was a case more Never demon- defendant legislature strative of the reason for the to enact the amend- 1895, ment to section the Civil Code of Montana of Chapter 2, 1947, set forth in Ex. L. now R.C.M. section 93-2906. being

The mandatory requires statute .change of venue it is any wherever shown that there is “reason to believe” that impartial trial cannot be had. fair right to a fair and is a right valuable *12 recog- early-' English law, where was derived from the pressures juries, under emotional people and local nized that prej- by unconscious thereby controlled might be happenings, trial law- Every happenings. seasoned by the produced udices case that in at least one such participated yer in his career has that a fair community pitch such a to the local had aroused in, county. The failure not be had impartial trial could matter, intent, a weak- in such legislative adhere to the true to judicial tribunals. respect ens of our injustices under these prevent It to such conditions mandatory disqualification dis- made legislature change place thereby of trial in- judges and the trict try cases impartial fair and such and insure sure a justice. It is the utmost im- trial and establish impartial statutory rights every portance that the constitutional and safeguarded every occasion, so person recognized, be on justice may honestly public believe and know any showing is in our Whenever there prevails fairness courts. may impartial trial, change a person that a not have a fair and granted trial must to avoid all doubt. Where place not conclusions as to whether or might minds reach different trial, here, impartial have fair and this the defendant can should in all fairness reverse the order of the district court trial not place court and order adjacent impar- the fair and to Powell so as to assure guaranteed every person tial trial our consti- which mandatory tition and I order. the above statute. would so (dissenting). MR. ADAIR: JUSTICE foregoing I in MR. JUSTICE BOTTOMLY’S dis- concur sent. 93-2906, governs

The statute section R.C.M. which here requires judge that “The 1947.- It commands and must, motion, change following of -trial in the on eases: ^[*] ^[*] n *. believe that an “2. When there is reason to * * supplied. Emphasis

cannot be had therein. “must” means “must” The word as used this statute “may.” not * * * place of change the The district court “must *13 showing strong timely proper trial” on motion and and McGillvray. says So made before it the defendant William statute, 93-2906, supra. section County Bank, Service, In Merchants Credit Inc. v. Chouteau (2d) 1074, 1076, 112 this 229, 233, 114 court held Pac. where, imposing “must” is used in in a statute the word duty upon officer, mandatory peremptory, a it and public upon him an imposes —it excludes direction absolute and duty perform the the statute. requirement to McCarthy, 100, 108,

In ex rel. 86 Mont. State O’Connor v. 1045, 1048, being involving power 282 Pac. a cause of a public particular duty prescribed by officer and whether a mandatory directory, statute was court held that since this Legislature ‘must’, in said statute “the used the which verb ‘obligation,’ as, obey (Webster), denotes ‘we must the laws’ and, impose duty, mandatory peremp- when used to it is and tory, imposes upon discretion, excludes and the officer an ‘ab- duty perform requirements solute of the statute in which employed’.” it is Superior City

In State of California v. Court 718, Francisco, App. (2d) (2d) 1322, of San 14 58 Pac. Cal. 1324, grant- the trial failed refused to make an order attorney general’s to transfer ing the written demand the action pur- to the of Sacramento which demand was made express (Cal. Code, 688, par. suant to an statute Pol. section 4) which, far as pertinent, provided: so here “It shall be the duty attorney general to defend suits; all such upon his written demand made at or before the answering, time of any of trial of such must changed suits be to the Emphasis supplied. of Sacramento.” There the appel- ‘must,’ late court said: “The word as ordinarily used, is man- 272 contrary provisions An

datory. 44 1498. order C.J. 304; Carter jurisdiction. 59 C.J. is in excess of such statutes Court, 752, Pac. Superior supra Cal. 667].” v. [176 trial, trial. This means a Every litigant is entitled to a fair rules with the established open, impartial and due accord only jury case, this, there must not be a of law. such upright judge jury fair learned and tó and a arise, upon legal questions instruct and rule atmosphere but should be an of calm wherein there also may give testimony fear or intimidation witnesses their without may engaged and wherein the counsel the trial assert may truth re- rights freely fully client’s and wherein be ceived, weighed given fear of violence. credence without 361, State, Fisher 145 Miss. So. See v. is that in concept

“One essential of a no outside fair jury, brought upon shall bear and that no fluence presented shall them than that evidence be considered other supplied. Emphasis and admitted on trial of the Hinton ease.” *14 (2d) v. Gallagher, 421, 432, 131, 190 Va. 57 S.E. August 1957, on his Wilbur C.- Cook at barn own summarily tried, adjudged guilty in

ranch Powell posse formed from forthwith executed a comitatus citizens of the' and commanded sheriff of county. MvGillvray, William the defendant herein, duly ap- is the pointed, qualified executor of the last will of the above-named decedent, Wilbur C. Cook. As party defendant in suit, this McGillvray William is entitled to a fair trial to be held atmosphere of calm impartial and before a fair and jury to elsewhere than be drawn from the comitatus of County. To this end defendant’s motion change of the trial herein place granted. should be of.the The law so com- mands.

273 REHEARING FOR ON MOTION MR. JUSTICE ANGSTMAN: the effect suggested that rehearing it is motion for

On executor, a de defendant, as deprive is to decision our contrary to sec to Wilbur C. was available fense which 93-2824, tion R.C.M. 1947.' 93-2906 is under section seeking change

A motion a venue 93-2824. meaning section not a defense within executor, defendant, may have a any like other proper a upon 93-2906 under section of trial impartial that an that “there is reason to believe showing is pending. county in the the action cannot be had” wherein and, as sharply denied showing prejudice Here the evidence the court opinion, appear not pointed out in the does denying motion. abused its discretion majority places opinion It herein is also contended that the required, than should be when greater burden on defendant motion if it be found permitted we defendant to renew his that a fair and could not be obtained.

Appellant that this with the case of contends rule conflicts 1026, 1031. The Spotted Hawk, State v. Pac. involved in that comparable facts this ease are not those showing Spotted strong In the there case. Hawk case only' against prejudice not the defendant but People tribe of Indians defendant was a member. of which parts in all of the armed themselves and threatened the tribe Indians. The in that recited exterminate case showing prejudice against defendant shown facts greatly “That people affidavit follows: were excited cowboys parts county; all and ranchmen to the homes, 200 had left their gathered number of ranch, at Cheyenne Agency; near the Indian that these men were armed; *15 .they gathered together that had to force the agent Indian to Hoover, claiming surrender the murderer of that the murderer tribe; of this that it was their intention, a.member if the go upon reservation, murderer was not surrendered, to and tribe; object, exterminate they, that of this furtherance gathered City eastern ammunition and rifles from Miles cities; cartridges that rifles from other were sent to them * * * parts county; great of the that the excitement was so military companies that the authorities sent several of soldiers prevent an many outbreak.” court indicated that The respects these statements were corroborated. newspaper complained also,

There were articles and as newspaper these the court said: “The clippings introduced at hearing are of value no whatever evidence of facts them; but, statements set forth in mindful of the heredi- tary enmity antipathy existing between the whites they Indians proximity wherever have lived in with each other country; mindful, also, fact, in this western which history, matter during years there have recent been troubles between parts the whites and the Indians in various country, of the publications fact these were made —the during a period weeks, extravagant inflammatory five character, their would lead one to believe that the readers of them would be more or less excited the statements con- tained them.” publications

The and radio broadcasts here complained of cannot characterized as calculated to do more give than an they account of the events occurred and of course were and are of no value as evidence of facts and statements made. Spotted court in the Hawk referring case after to the facts recited in defendant’s affidavit said: “If these state- ments of the true, defendant were not easily could have been they They shown that were not. seriously are not controverted.” every any Here fact indicating prejudice part on the public against Here, Cook is denied. unlike the Spotted case, Hawk public there was no action indicating any prejudice against being case, Cook. This a civil there seems to upon us no basis which hold trial cannot

275 abused its dis- had in Powell- or that the be change venue. denying cretion in the motion for. exists no “blaze of excitement showing there Spotted holding in the

passion” (which the basis of the at case) of his estate was Hawk Cook or the executor strong showing least that there was such excitement. again that was We call attention fact apprehend drawn the sheriff Cook and not was called kill him. every right protected here, think under

We of defendant made, by showing permitting a renewal of the motion for it at place appears of trial if the trial a fair obtained, particularly cannot be since since, years place now two and nine months the events took year and more than months since this one and seven action appealed and the commenced order from was entered. Prejudice, any, may if passage have subsided with the of time. Searle, (2d) State v. Pac. rehearing

The motion for is denied. CASTLES, MR. THE JUSTICE HONORABLE GUY DERRY, Judge, place C. sitting District of MR. CHIEF JUSTICE HARRISON.

MR. JUSTICE BOTTOMLY:

I dissented majority when the opinion was handed down. my opinion, my dissent stated the applicable law therein 23-2906, that section R.C.M. 1947, is mandatory. A change of trial should granted.