dissenting:
I think the motion to change the place of trial in this case should have been granted. The newspaper article using unfounded facts to portray the incident as an old west shoot-out together with the news broadcast over radio station KSEN created a climate of opinion in the county which is evidenced by the several calls received by the Toole County Sheriff’s Office to determine whether the defendant had been released from jail on bond, and making known the callers’ objections if the defendant was to be released. The justice of the peace who set the bail bond at $50,000 received thereafter an anonymous telephone call indicating that the defendant would be shot if he were released. The situation was bad enough that when the defendant was released on bond, the judge made it a condition of his release that he leave Glacier and Toole Counties, except for court appearances, for his own protection. The caretaker who managed the Bashor property in Bashor’s absence was then threatened and intimidated.
The antagonistic attitude of the community was demonstrated in the voir dire examination of the juror to which reference is made in the majority opinion.
*429Our courts are understandably cautious about the added costs of trials in places other than the county where the alleged crime occurred. However, the constitutional requirement of fair trial, Art. II, § 17, 1972 Mont.Const., overrrides financial considerations. See State v. Spotted Hawk (1899), 22 Mont. 33, 55 P. 1026; State v. Dryman (1954), 127 Mont. 579, 269 P.2d 796.
As a second point, the instructions offered by the State, given by the District Court, and now approved by this Court make it impossible for a defendant to establish self-defense in this state.
Court’s instruction no. 24, tells the jury that before a defendant can avail himself of the defense of self-defense, it must appear to him as a reasonable person that “the danger was apparently so urgent and pressing” that “the killing was absolutely necessary.”
In court’s instruction no. 28, the jury is told that in order to justify the use of force, it must appear to the defendant that the danger was so urgent that in order to save his own life or to save himself from serious bodily harm, the use of such deadly force was “absolutely necessary.” This instruction obliterated the “reasonable man” test.
In instruction no. 26, the jury was told that defendant could be acquitted if he killed the deceased “in necessary self-defense. ”
The use of the terms “necessary”,“absolutely necessary”, and “urgent and pressing” require nearly impossible tests for self-defense. The approval of those terms by this Court will bring us a log-jam of cases in the future to straighten out the law. The instructions go far beyond section 45-3-102, MCA, on which model Instruction no. 35, Criminal Instructions — Montana, is based:
“You are instructed that a person is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of such force.
“However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he really believes that such force is necessary to prevent imminent *430death or serious bodily harm to himself or the commission of a forcible felony.”
We should not give judicial sanction to the misstatements of law contained in those three instructions which were properly objected to.
Thirdly, the final argument of the prosecutor to the jury went beyond the bounds of propriety, because he used inflammatory material which he knew to be untrue in that argument. The prosecutor stated:
“Bill Schaeffer thought they were just going there to beat him up a little. And you can tell by the way he sat on the stand and testified that it wouldn’t take long to completely annihilate more than two or three people. So he knew they were going over there for a fight. That’s why he came into town ...”
The prosecutor knew from the polygraph examination of Bill Schaeffer that statements that they went to the bar looking for a fight were not true. Otherwise the State would have had to prosecute Bill Schaeffer as an accomplice. The “bounds of comment and reasonable inference” relied upon by the majority do not include untruth. To make matters worse, the State, though making statements in final argument which are not in accordance with the polygraph examination of Bill Schaeffer, nevertheless argued to keep out the polygraph examination which would have shown those prosecutor statements to be false.
One detects a reluctance on the part of the courts involved in this case to face up to an irate community aroused because of the killing of a popular citizen by an unpopular citizen. It is for that kind of criminal that the law sets up constitutional and legal safeguards to insure a fair trial for every defendant, no matter how guilty eventually he may turn out to be.
I would reverse for a new trial in a different county.