(dissenting).
I am unable to agree with the conclusion reached in Division III of the majority opinion, therefore respectfully dissent.
In upholding trial court’s refusal to grant defendant’s request for change of venue, the majority weakens the office of venue as a recognized means for assuring an accused a fair and impartial trial.
The majority would apparently require a defendant show existence of widespread identifiable prejudice in the community where charged before a refusal to allow a change of venue would be violative of trial court’s sound discretion. With this I cannot agree.
A showing of actual or isolatable prejudice should not be a prerequisite to reversal. See Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1632-1633, 14 L.Ed.2d 543, and American Bar Association Advisory Committee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press, page 119. To require such a showing as the majority apparently prescribes would, in my opinion, serve to impose an impossible burden upon most, if not all, defendants.
While we are not here concerned with a case factually comparable to Sheppard v. Maxwell, 384 U.S. 333, 362-363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, this statement by the Federal Supreme Court relative to burden imposed upon an accused in order to obtain a change of venue will be helpful : “Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.”
By virtue of the fact defendant in this case does not present a challenge as to fair trial under the federal constitutional due *384process mandate, and the rule set forth in Chapman v. California, 386 U.S. 18, 20-24, 87 S.Ct. 824, 826-828, 17 L.Ed.2d 705, the issue as to pretrial publicity and fair trial must be resolved upon the basis of our change of venue statutes, and common law standards.
I would hold trial courts, confronted with a motion under section 778.9, Code, 1966, should be required to distinctly find nothing less than that any pretrial publicity will justify a change of venue unless it clearly appears there is no reasonable likelihood the news coverage will serve to deny an accused a fair and impartial trial. See Estes v. Texas, supra.
In the instant case defendant filed a written verified motion for change of venue, supported by affidavits of three disinterested parties as required by Code section 778.3. In addition he presented the court with newspaper articles which, inter alia, described defendant as having tattoos on four fingers of his left hand, being a “parole violator”, and “finger-tattooed bandit”, with photographs of the accused. Defendant also alleged adverse radio and television broadcasts were aired. To all of this as the majority concedes, the state failed to make any contrary showing whatsoever. I submit this alone is sufficient to support my conclusion, infra.
Under these circumstances I find there was a reasonable likelihood defendant could not be accorded a fair trial in the jurisdiction where charged.
In an apparent effort to bolster its conclusion, the majority also takes the position, no bias or prejudice is shown by virtue of the voir dire examination of the jury, or otherwise.
The difficulty with this approach is, as stated by the American Bar Association Advisory Committee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press, page 127: “* * * the problem of obtaining accurate answers on voir dire — is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community? Thus if change of venue and continuance are to be of value, they should not turn on the results of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone.
“The second difficulty is that when disposition of a motion for change of venue or continuance turns on the results of the voir dire, defense counsel may be placed in an extremely difficult position. Knowing conditions in the community, he may be more inclined to accept a particular juror, even one who has expressed an opinion, than to take his chances with other, less desirable jurors who may be waiting in the wings. And yet to make an adequate record for appellate review, he must object as much as possible, and use up his peremptory challenges as well. This dilemma seems both unnecessary and undesirable.
“The Committee therefore proposes * * * that when a motion for change of venue or continuance is made prior to the impaneling of the jury, it shall be disposed of before impaneling. And * * * the fact that a jury meeting prevailing standards has been obtained shall not be regarded as determinative.” See also Estes v. Texas, supra.
Upon the basis of the foregoing I would reverse and remand with instructions to grant defendant’s motion for change of venue and accord him a new trial.