(dissenting).
I concur in MR. JUSTICE BOTTOMLY’S foregoing dissent.
The statute which here governs is section 93-2906, R.C.M. 1947.- It commands and requires that “The court or judge must, on motion, change the place of -trial in the following * * ■*. eases:
*271“2. When there is reason to believe that an impartial trial cannot be had therein. * * Emphasis supplied.
The word “must” as used in this statute means “must” and not “may.”
The district court “must * * * change the place of trial” on the timely and proper motion and strong showing made before it by the defendant William McGillvray. So says the statute, section 93-2906, supra.
In Merchants Credit Service, Inc. v. Chouteau County Bank, 112 Mont. 229, 233, 114 Pac. (2d) 1074, 1076, this court held that where, in a statute the word “must” is used in imposing a duty upon a public officer, it is mandatory and peremptory, —it excludes direction and it imposes upon him an absolute duty to perform the requirement of the statute.
In State ex rel. O’Connor v. McCarthy, 86 Mont. 100, 108, 282 Pac. 1045, 1048, being a cause involving the power of a public officer and whether a particular duty prescribed by statute was mandatory or directory, this court held that since in said statute “the Legislature used the verb ‘must’, which denotes ‘obligation,’ as, ‘we must obey the laws’ (Webster), and, when used to impose a duty, it is mandatory and peremptory, excludes discretion, and imposes upon the officer an ‘absolute duty to perform the requirements of the statute in which it is employed’.”
In State of California v. Superior Court of City and County of San Francisco, 14 Cal. App. (2d) 718, 58 Pac. (2d) 1322, 1324, the trial court failed and refused to make an order granting the attorney general’s written demand to transfer the action to the County of Sacramento which demand was made pursuant to an express statute (Cal. Pol. Code, section 688, par. 4) which, so far as here pertinent, provided: “It shall be the duty of the attorney general to defend all such suits; and upon his written demand made at or before the time of answering, the place of trial of any such suits must be changed to the county of Sacramento.” Emphasis supplied. There the appellate court said: “The word ‘must,’ as ordinarily used, is man*272datory. 44 C.J. 1498. An order contrary to the provisions of such statutes is in excess of jurisdiction. 59 C.J. 304; Carter v. Superior Court, supra [176 Cal. 752, 169 Pac. 667].”
Every litigant is entitled to a fair trial. This means a trial, open, impartial and in due accord with the established rules of law. In a jury case, such as this, there must not only be a fair and impartial jury and a learned and upright judge tó instruct the jury and rule upon the legal questions that arise, but there should also be an atmosphere of calm wherein the witnesses may give their testimony without fear or intimidation and wherein the counsel engaged in the trial may assert his client’s rights freely and fully and wherein truth may be received, weighed and given credence without fear of violence. See Fisher v. State, 145 Miss. 116, 110 So. 361, 365.
“One essential concept of a fair trial is that no outside influence shall be brought to bear upon the jury, and that no evidence shall be considered by them other than that presented and admitted on trial of the ease.” Emphasis supplied. Hinton v. Gallagher, 190 Va. 421, 432, 57 S.E. (2d) 131, 136.
In August 1957, Wilbur C.- Cook at the barn on his own ranch in Powell County was summarily tried, adjudged guilty and forthwith executed by a posse comitatus formed from the citizens of Powell County and commanded by the' sheriff of that county.
William MvGillvray, the defendant herein, is the duly appointed, qualified executor of the last will of the above-named decedent, Wilbur C. Cook. As the party defendant in this suit, William McGillvray is entitled to a fair trial to be held in an atmosphere of calm and before a fair and impartial jury to be drawn elsewhere than from the posse comitatus of Powell County. To this end defendant’s motion for change of the place of.the trial herein should be granted. The law so commands.