(dissenting).
We are met at the outset in this case with an interpretation of Article 560, V.A.C.C.P., which provides:
*156“Whenever in any case of felony the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue.”
It is only the italicized portion of the above statute which must here receive our attention. All concede that the court acted properly in changing the venue out of Smith County, but the appellant strenuously objected to the case being sent many miles away to Dallas County rather than to a county in his own or an adjoining district as provided by the statute. Never before, so far as I can ascertain, has this question been so clearly presented for decision. Here, the appellant called fifteen witnesses, such as sheriffs, prosecuting attorneys, county judges, etc. from all “adjoining districts” whose testimony covered 170 pages of the record and conclusively establish, to my mind at least, that the state and the accused could receive a fair trial in any of the counties adjoining Wood, where the offense was alleged to have been committed, and Smith, where the first trial was had.
Recently, in Ellzey v. State, 158 Texas Cr. Rep. 604, 259 S.W. 2d 211, we said, “We do not hold that it would be within the discretion of a trial court to arbitrarily transfer a case from one side of the State to another.” In the case at bar, the appellant has affirmatively shown that which was absent in Ellzey, to-wit: that “the intervening counties were free from the objections” which existed in Wood and Smith Counties. In the recent case of Spriggs v. State, 163 Texas Cr. Rep. 167, 289 S.W. 2d 272, relied upon by my brethren, the venue was changed from Milam to the adjoining county of Falls, and therefore cannot support the action of the court in the case at bar. For the same reason, Henderson v. State, 104 Texas Cr. Rep. 495, 283 S.W. 497, will not support the holding of the majority herein.
The only effort made by the State to support the trial court in disregarding fhe provisions of the above statute was to show that the case had received some publicity in some of the counties by means of newspaper accounts and television and radio reports. This court has held, in line with the Supreme Court of the United States, that newspaper publicity is not the proper criterion upon which to determine the question of change of *157venue. Kizzee v. State, 166 Texas Cr. Rep. 191, 312 S.W. 2d 661, and cases there cited.
For the reason stated, I respectfully dissent.