concurring.
Although I agree in large part with the reasoning of Mr. Justice Black’s opinion in dissent, I nevertheless join in the Court’s judgment that this conviction of Father Groppi must be vacated and the case remanded for further proceedings. In so doing, however, I feel compelled to make the following observations:
1. The primary issue, it seems to me, is whether the appellant (hereafter defendant). received, a fair trial, not whether, as a matter of. abstract constitutional law, he was entitled to a change of venue in a Wisconsin misdemeanor prosecution in 1968.
2. A fair trial, of course, is fundamental. No one disputes that. ' As the Court points out in footnote 12 of its opinion, this principle of English-American jurisprudence was evolved prior to the embodiment of the treasured concepts of an impartial jury in the Sixth Amendment and of due process in the Fifth and Fourteenth.
3. If the defense believes that a fair trial is unlikely because of community prejudice, that is a matter for proof by the defense,. and, when proved, should constitutionally warrant, and indeed demand, a change of venue in any case, whether the prosecution be for a felony or for a misdemeanor.
4. Thus, I find myself in agreement with the two dissenting Justices of the Supreme Court of Wisconsin and with that court’s. Chief Justice, in concurring in the *513result of the majority opinion, when thé three conclude, 41 Wis. 2d 312, 324, 325, 164 N. W. 2d 266, 272, that a change of venue in a misdemeanor case is constitutionally required upon a proper showing.
5. I am at a loss to understand how a change of venue statute expressed in positive but permissive terms and specifically applicable to. felony cases can be construed to embody a negative prohibition for misdemeanor cases, particularly with regard to so fundamental a right as the right to have a trial untainted by community prejudice. The statutory interpretation so made is all the more unexpected because it raises an otherwise quite avoidable constitutional issue.,.
6. But the Wisconsin court has spoken and, by majority vote, has construed the state statute then in effect in that very. way. Construction of the. statute is the state court’s task. It is not our task. And we are bound by the Wisconsin court’s decision as to the meaning and application of a Wisconsin statute.
7. The record before us leaves much to be desired. It discloses no formal offer of proof of the kind customarily made. It contains no transcript of the voir dire, and thus there is no way in which we or anyone else can evaluate from the voir diré the presence, or the possibility of the presence, of actual prejudice in any member of the jury panel. Although a “motion after verdict” was made and although it referred to “the ground of community prejudice,” the motion does not in so many words assert that this defendant actually was denied a fair and impartial trial. Neither is the motion supported by affidavits incorporating the claimed prejudicial media reports.
8. The jury appears to have been selected expeditiously and without difficulty during a single morning. And we note what appears to be conflicting evidence in the record as to Father Groppi’s behavior at the point of his arrest, evidence which would, support a fair jury’s conclusion *514either way, that is, that he did resist arrest or that he did not resist arrest, within the meaning and application of the Wisconsin statute.. On balance, in the face of what may be regarded as a ruling by the trial court that no showing, however persuasive, of community prejudice and its effect upon the jury actually selected could command a change of venue in -this misdemeanor case, I am content to join in the vacation of the judgment of conviction and in the remand in order to allow the defendant to attempt to make his proof.
9. I would stress, however, more than by the three-line final footnote which may be lost to the' reader who is more interested in the notoriety of the case than in what we are doing today by wáy of specific ruling, that this remand does not necessarily mean a new trial for Father Groppi, and freedom from his conviction on the charge of resisting arrest. The defendant is to have his oppor-. tunity to demonstrate prejudice and the likelihood of an unfair trial. If he fails in that quest, or if he now refuses to undertake it, the judgment of conviction may be reinstated. If. he does not fail, then of course the conviction falls and the State is remitted to its choice between a new trial or a dismissal of the charge.
10. Finally, I doubt very much whether this rather unimportant case, but an admittedly sensitive one because of the identity of the defendant and the means he has selected to make his protests known, at all approaches the circumstances and the offensive character of what this Court condemned in Sheppard v. Maxwell, 384 U. S. 333 (1966), in Rideau v. Louisiana, 373 U. S. 723 (1963), and in Irvin v. Dowd, 366 U. S. 717 (1961), cited in the Court’s opinion. Nevertheless, unfairness anywhere, in small cases as well as in large, is abhorred, is to be ferreted out, and is to be eliminated. Despite the "unsatisfactory record, this defendant must have his opportunity to demonstrate what he alleges.