I dissent.
This is an appeal from an order of the district court denying the motion of the defendant for change of place of trial.
The action was brought in Powell County on behalf of the heirs of Melvin Earl McGraff to recover damages for his wrongful death.
The other facts need not be repeated here.
*264There can be no question but that the whole of Powell County was deeply aroused over the double killing of Melvin Bari McGraff and Homer B. Garren, to be climaxed by. the killing of Wilbur C. Cook by a posse comitatus (or power of the .county) formed and commanded by the sheriff of Powell County. Wilbur C. Cook was suspected of the killing of Melvin Earl MeGraff and Homer B. Garren.
With the wide publicity given throughout Powell County of these events by radio and the press, all purporting to assert as facts that Wilbur Cook had murdered the two men, and a running account of the happenings of the posse comitatus and the bloodhounds, together with the reaction and talk. of the many members of the posse comitatus, their relatives and friends, being spread throughout Powell County, it would seem to be quite natural and impossible for anyone standing in the shoes of and representing Wilbur C. Cook to have a fair and impartial trial before a jury summoned from the citizenship of Powell County where this all transpired, and where most, if not all, of the witnesses against defendant no doubt will come.
The affidavit of William McGillvray, as executor of the estate of Wilbur C. Cook, deceased, in connection with his motion for a change of venue, is as follows:
“William McGillvray, being duly sworn, deposes and says:
“That he is the duly appointed, qualified and acting Executor of the Estate of Wilbur C. Cook, deceased; that he was appointed Exeeutor of the Last Will and Testament of said Wilbur C. Cook on September 17, 1956.
“That said Wilbur C. Cook was the owner of and resided upon ranch property in Powell County, Montana, situated on Nevada Creek in a mountainous area; that said property was located so that a strip approximately one-fourth mile wide and three quarters of a mile long was traversed lengthwise by the course of Nevada Creek; that said Wilbur C. Cook had a cabin and-a barn and other out buildings upon said lands; that adjoining and to the north of said lands was certain property known as the Keiley ranch.
*265“That on or abont August 19, 1956, Melvin Earl McGraff and Homer B. Garren were fishermen, who met their death from gunshot wounds beside Nevada Creek' on or near the lands of the said Wilbur C. Cook; that the Sheriff of Powell County upon being called to the scene, concluded that the men had been murdered by said Wilbur C. Cook; that a posse was formed by the Sheriff of Powell County, Montana, to look for said Wilbur C. Cook; that the posse included the Sheriff, of Powell County, the County Coroner, several Highway Patrolmen, State Fish and Game Employees, George Talbot, an attache of the Montana State Prison of Deer Lodge and Powell County, Montana, who owned and maintained and was skilled in thé handling of trained bloodhounds used in tracking persons, several deputy sheriffs and a number of private citizens; that throughout the night the posse continued its search, and on the morning of August 20, 1956, one or more airplanes were employed by the authorities to fly over the mountainous area; that a pilot then reported seeing a jeep on the ground near the ranch premises of said Wilbur C. Cook which it was ascertained was his jeep; that thereupon approximately fifteen members of the posse, including the Sheriff of Powell County, the Coroner of Powell County, the said George Talbot with his bloodhounds, several other officers, and several private citizens went to the ranch buildings of said Wilbur C. Cook, where he was found; that said Wilbur C. Cook was not arrested so that he could be brought to trial, although surrounded by more tha/n fifteen armed men; that the public feeling was so high and the minds of the posse were so inflamed, he was shot and killed, receiving six or more fatal wounds from a volley of shots fired by members of the posse.
“That immediately after the bodies of the two fishermen were found, the fact that they had been shot and that a posse was searching for the killer, was widely publicized by radio, and word of mouth; that the minds of the people of Powell County were inflamed against Wilbur C. Cook; that the póssé included two relatives of the deceased fishermen; that the in*266tense feeling against him is evidenced by the fact that Cook Itvas shot and, killed without being arrested and tried; that the search and the slaying of the suspect Wilbur C. Cook was the subject of lengthy newspaper articles in The Montana Standard, a daily newspaper published at Butte, Montana, having a large circulation in Powell County, Montana, and also in the Silver State Post, a weekly newspaper published in the county; that both of said newspapers are widely read in all parts of the county; that in the newspaper accounts it was assumed that Wilbur C. Cook had been guilty of murder and that he was the person who killed Melvin Earl MeGraff and Homer G. Garren; that radio broadcasts of the killings were heard in all parts of the county.
“That affiant is a rancher over sixty-two years of age who was bom in and has resided in Powell County all of his life; that affiant is acquainted with and has talked with people from all parts of Powell County and from discussing this matter with people from all parts of the County, knows that a strong feeling of prejudice and hostility existed immediately after the killing had occurred against Wilbur C. Cook and a general conviction that he was guilty of murder; that the minds of the people of the County were so incited and inflamed that a general prejudice and feeling of hatred existed against said Wilbur C. Cook; that the feeling of prejudice against Cook still exists and that by reason thereof, the defend,iant ca/nnot home a fair and impartial trial in the above entitled ,cases by reason of said prejudice and feeling against said Wilbur ■C. Cook is so strong that any jury picked in Powell County would be influenced by the feeling of prejtcdice consciously or ■unconsciously.
“That affiant alleges upon information and belief that the two above-entitled eases should be transferred to some other county where the matter was not so widely publicized and discussed and where the feeling of hostility and prejudice against said Wilbur C. Cook does not exist.” Emphasis supplied.
The affidavit of A. G. Cook, no relation of Wilbur C. Cook, *267deceased, and the affidavit of Sandy 0. Rierson were of the same general affirmative character as the affidavit of "William McGillvray.
Here, every requirement of the statute was followed hy William McGillvray, as executor of the estate of Wilbur C. • Cook, deceased, for a change of venue.
In opposition to the motion several affidavits were filed from officials and other residents of the county stating generally that there is no reason why William McGillvray, executor of the estate of Wilbur C. Cook, deceased, cannot have a fair and impartial trial in their county.. It is only natural that officials and residents of that or any other county should defend the good name of their county. It would be surprising and'against human nature if they did not.
But in this case the counter affidavits, with their accumulated negative statements, should not overbalance the positive statements of facts of the. defendant; it is the. weight of the evidence rather than the number of witnesses that controls, just as it is a rule of evidence that the affirmative statements of persons who swear to the existence of facts are entitled to a greater credence than are. the statements -of many persons who merely deny the existence of the fact or facts in dispute.
Here a whole posse eomitatus, residents of Powell County, were hunting for the suspect, Wilbur C. Cook. He was found, but was not arrested to be tried in a lawful manner; Yet he was surrounded by some fifteen armed men, who- -upon sight opened fire and Wilbur C. Cook -was killed.
Can anyone say that the hatred, and the feeling and prejudice of the people of Powell County being aroused to such a fever pitch against Wilbur C. Cook would not naturally carry over against the interests and wishes of Wilbur C. Cook, represented by the person standing in Wilbur C. Cook’s shoes and stead as executor? To ask the question is to answer it; of course human nature being- what it is, the people of Powell Comity would be unconsciously -prejudiced against his representative in only a lesser degree than against Cook himself, if he were *268present; Under" the circumstances here this trial will still be against Wilbur C. Cook, his will and wishes, and not against William McGrillvray.
Every seasoned trial lawyer knows of his own knowledge and experience^ of similar circumstances that this is true.
It is of the utmost importance that the constitutional and statutory rights of a person to a fair and impartial trial should be recognized, protected and preserved on the defendant’s account- in the first instance, and secondly so that public faith and assurance in our judicial institutions remain inviolate, for nothing will so quickly destroy confidence in the justice of our courts or so quickly destroy law and order as would a belief that unfairness and injustice dominated our courts. Under our Code of Civil Procedure of 1895, the original applicable statute (section 615) for change of venue which was taken word for word from California, whose statute (section 397) still reads the same, which as pertinent here, reads as follows:
” The: court may, on motion, change the place of trial in the following eases: - * * *
“2. When there is reason to believe that an impartial trial cannot be had therein.” Emphasis supplied.
This law remained in effect until 1903 at which time the governor -of -Montana requested the Eighth regular session of the Montana Legislative Assembly to pass three fair trial laws, one was for the disqualification of district judges (now section 93-901), one was for the adequate change of venue (now contained in ft.CM. 1947, section 93-2906), and the third, making it the duty of - the supreme court in equity cases or matters and proceedings of an equitable nature to review all questions of fact as well as questions of law, etc. (now contained in E.C.M. .1947, section 93-216).
The regular session of 1903 failed to pass the above-mentioned fair trial laws, whereupon the governor called the legislature -back in extraordinary session, they still failed to pass the: same, and adjourned. Again the- governor called them back to-the Second Extraordinary Session of 1903 at which session *269the three fair trial laws were passed as Chapters 1-3 of the Second Extraordinary Session Laws of the State of Montana, and became the law of Montana on the subjects therein respectively treated.
It is therefore very pertinent to note in regard to the question presented here, whether or not this defendant is by right and by law entitled to an order changing the place of trial.
It will be observed that section 615 of the Civil Code of Montana of 1895 was materially and effectively amended by Chapter 2 of said Second Extraordinary Session of 1903, by striking the permissive word “may” and substituting the mandatory word “must” therein so that the section (93-2906) after the amendment now reads:
“The court or judge must, on motion, change the place of trial in the following cases: * * *
“2. When there is reason to believe that an impartial trial cannot be had therein.” Emphasis supplied.
The provisions of that section are mandatory and require the district judge to change the place of trial after a meritorious motion and pleading has been filed. The court cannot act of its own motion but only after the motion therefore and pleading are filed. See Justice Holloway speaking for this court in State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109.
When, as here, there were so many affidavits filed in the matter on both sides showing such a difference in reasoning and when this court is divided on the matter surely there is reason to believe that a fair and impartial trial ecmnot be had by the defendant in Powell County. Never was a case more demonstrative of the reason for the legislature to enact the amendment to section 615 of the Civil Code of Montana of 1895, as set forth in Chapter 2, Ex. L. 1903, now R.C.M. 1947, section 93-2906.
The statute being mandatory it requires a .change of venue wherever it is shown that there is any “reason to believe” that a fair and impartial trial cannot be had.
The right to a fair and impartial trial is a valuable right and *270was derived from the English law, where it was early-' recognized that people and juries, under emotional pressures of local happenings, might be thereby controlled by unconscious prejudices produced by the happenings. Every seasoned trial lawyer has in his career participated in at least one such case that had aroused the local community to such a pitch that a fair and impartial trial could not be had in, the county. The failure to adhere to the true legislative intent, in such a matter, weakens the respect of our judicial tribunals.
It was to prevent such injustices under these conditions that the legislature made mandatory the disqualification of district judges and the change of place of trial and thereby insure a fair and impartial jury to try such cases and insure an impartial trial and establish justice. It is of the utmost importance that the constitutional and statutory rights of every person be recognized, and safeguarded on every occasion, so that the public may honestly believe and know that justice and fairness prevails in our courts. Whenever there is any showing that a person may not have a fair and impartial trial, a change of place of trial must be granted to avoid all doubt. Where minds might reach different conclusions as to whether or not the defendant can have a fair and impartial trial, as here, this court should in all fairness reverse the order of the district court and order a change of the place of trial to a county not adjacent to Powell County so as to assure the fair and impartial trial which is guaranteed to every person by our constitition and the above mandatory statute. I would so order.