dissenting.
Respectfully, I dissent.
The Majority Opinion speaks of § 7 of our Kentucky Constitution guaranteeing the “[t]he ancient mode of trial by jury *509shall be held sacred, and the right thereof remain inviolate,” and of § 11 of our Kentucky Constitution guaranteeing the criminally accused “trial by an impartial jury.” It does little good for us, as a court, to speak these words unless we are committed to the substance and spirit of the principles they embody.
This was a crime of a bizarre nature committed in a relatively small, rural community: a robbery allegedly committed by a man wearing one of his wife’s dresses, with the suggestion that he was a transvestite. The sworn Petition for Change of Venue and two supporting affidavits allege, collectively, that public opinion in Ohio County is that the defendant is guilty, and he cannot receive a fair and impartial trial at the hands of a jury in Ohio County at this time. The Majority Opinion suggests that “the form affidavits are more than questionable.” But this elevates form over substance. The fact that the affidavits fail to state directly that “the affiant verily believed the statements of the petition for the change of venue were true,” is not a valid reason to deem the affidavits defective. After all, they are sworn, and by definition this means the affiant verily believed the statements to be true.
KRS 452.220(2) states that with the petition for change of venue the defendant shall file “the affidavits of at least two (2) other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true.” The sworn petition and affidavits, taken together, are more than sufficient to comply with this statute. It has been the law in this Commonwealth for at least 60 years, that if “no affidavits or witnesses are introduced controverting the statements of the petition and supporting affidavits, the defendant is entitled to a change of venue, and the court has no discretion in the matter.” Miller v. Commonwealth, 248 Ky. 717, 59 S.W.2d 969, 971 (1933). Miller goes on to state that “mere denial in the form of a statement of the commonwealth’s attorney is not sufficient for that purpose.” Id. at 972. This means that the argument of the Commonwealth, unsupported by counter-affidavits or sworn evidence, does not give the trial court discretion to overrule the petition for change of venue.
More recently, in Brunner v. Commonwealth, Ky., 395 S.W.2d 382, 384 (1965), citing Roberson’s New Kentucky Criminal Law and Procedure (2nd ed.), the rule is restated “unequivocally” that the defendant’s petition with affidavits “made a pri-ma facie case, and if no witnesses are introduced by either party, the trial court has no discretion in the matter, but the defendant is entitled to a change in venue as a matter of right, and the change should be made, and it is reversible error not to make it.” [Emphasis added.]
Somewhat equivocally, the present Majority Opinion states that Miller and Brun-ner “are overruled to the extent that they conflict with this opinion.” Since it is not clear whether or not this case is being decided on the principle that affidavits in support of the petition for change of venue were insufficient, or on the basis that the trial court retains discretion to deny the petition regardless of the sufficiency of the affidavits, the extent to which Miller and Brunner are overruled is not clear.
For my part, I would not overrule them at all. Indeed, I would interpret and apply them in the spirit in which they were intended, which is to protect the rights of the criminally accused to the ancient and sacred guarantees of trial by an impartial jury. Certainly, it is much easier to arrange to move cases from one county to another now than it was 60 years ago when Miller was decided, or 200 years ago when the right to trial by an “impartial jury” was guaranteed by our first Kentucky Constitution. If anything, there is more reason now, rather than less reason, to demand trial judges move cases from a community where the circumstances of the offense have been widely reported on and discussed. A neutral jury, which is our constitutional guarantee, is one that will decide the case on the evidence presented in open court rather than the knowledge *510and opinion that the jurors bring in with them to court.
The Majority Opinion refers to cases from “other jurisdictions” which “have held that the denial of a motion [for change of venue] will not support a reversal of the conviction where the record establishes that the defendant received a fair trial and there was no difficulty in obtaining an impartial jury.” This has not been the law in Kentucky, nor should it become so. It is almost impossible to prove, after the fact, that jurors were not fair. To shift to the appellant the burden of proving that he was denied a fair trial by refusing the change of venue is to impose an impossible burden, to turn a fundamental right into an empty phrase. As stated by Chief Justice Hughes in United States v. Wood, 299 U.S. 123, 145, 57 S.Ct. 177, 81 L.Ed. 78, 88 (1936), “[impartiality is not a technical conception.”
Finally, the Majority Opinion cites Campbell v. Commonwealth, Ky., 788 S.W.2d 260 (1990), for the proposition that the Commonwealth’s failure to file counter-affidavits is not necessarily fatal. Campbell is inapposite. In Campbell, the motion for change of venue was not made until three days into the trial, and not ruled on until five days of voir diring jurors under oath regarding their opinions and attitude, and their knowledge of pretrial publicity. In such circumstances the sworn answers of the jurors gave substance to denying the change of venue. This falls far short of providing justification for denying the change of venue in present circumstances, where it was done at a pretrial argument with no witnesses present to contradict the appellant’s affidavits.
COMBS, J., joins this dissenting opinion.