dissenting:
The majority opinion holds that the judgment in this case should be reversed because the trial court refused to grant the defendant’s motion for a change of venue made on the day the case was set for trial. This motion was presented about one and one-half months after five motions, pleas and demurrer had been made by the defendant and ruled on by the court. Thirty-two witnesses testified in support of the defendant’s motion and thirteen witnesses testified on behalf of the state in opposition to said motion. The witnesses for the defendant testified in effect that because of widespread publicity in the news media concerning the defendant they were of the opinion that he could not receive a fair trial in Kanawha County. The witnesses who testified for the State stated that he could receive a fair trial.
The trial court in ruling on said motion after hearing all evidence in connection therewith stated:
“I find that no wide-spread feeling of prejudice, or hatred, or ill will against the defendant such as would prevent him from receiving a fair trial in this Court exinsts in this county, at this time.
“True, the defendant’s name has appeared in the news media on numerous occasions over the past four or five years. His associations with persons of high position in government and other activities and connections have no doubt been discussed both pro and con by several people both in this county and all of the other counties in this State.
“I have considered the petition, the exhibits, the testimony of all the witnesses on behalf of the defend*572ant and the State on the issne of whether there exists in this county such feeling of prejudice as would permeate a trial or interfere with the ends of justice. I find that such does not exist.”
The case of State v. Flaherty, 42 W. Va. 240, 24 S. E. 885, held that a defendant was entitled to he heard on a motion for a change of venue regardless of whether or not a jury is impaneled free from exceptions and in that case it was reversed because the trial court did not allow the defendant to offer evidence in support of his motion for a change of venue. In the case at bar a full hearing was had before the trial court and the trial court considered all of the evidence and exhibits in support of the motion before ruling on said motion. The mere existence of widespread newspaper publicity is not in itself sufficient to require a change of venue. State v. Hamric, 151 W. Va. _, 151 S. E. 2d 252, (decided by this Court July 15, 1966); Bearden v. United States, 304 F. 2d 532 (C.C.A.5, 1962).
The case of State v. Siers, 103 W. Va. 30, 136 S. E. 504, cited in the majority opinion is inappropriate for authority in the case at bar. The motion for a change of venue in the Siers case was timely made and affidavits alleged widespread hostile sentiment against the accused existed throughout the entire county which was uncontroverted by the State in any manner. In the case at bar thirteen reputable citizens testified that the defendant could have a fair trial in Kanawha County.
It has been repeatedly held that the burden rests on the defendant to prove the need for a change of venue and the existence of prejudice at the time of the trial and that the granting of such motion rests in the sound discretion of the trial court. State v. Powers, 91 W. Va. 737, 113 S. E. 912; State v. Wooldridge, 129 W. Va. 448, 40 S. E. 2d 899; State v. Pietranton, 140 W. Va. 444, 84 S. E. 2d 774; State v. Loveless, 140 W. Va. 875, 87 S. E. 2d 273; State v. Hamric, supra; State *573v. Riley, 151, W. Va. _, 151 S. E. 2d 308, (decided by this Court November 22, 1966).
Tbe newspaper stories contained factual statements of instances in wbicb tbe defendant was involved and it bas been beld that factual statements and widespread statements published by newspapers are not sufficient for a change of venue. State v. Pietranton, supra; Bearden v. United States, supra; State v. Hamric, supra; State v. Riley, supra.
It bas also been beld that it is not sufficient merely to show that prejudice exists against tbe defendant but it must appear that tbe prejudice against him was so great as to prevent him from receiving a fair and impartial trial. State v. Beale, 104 W. Va. 617, 141 S. E. 7, 141 S. E. 401; State v. Riley, supra. Tbe testimony of tbe defendant’s witnesses in tbe main was to the effect that in their opinion tbe defendant could not receive a fair trial because of news publicity and it bas been beld that where a motion for a change of venue bas been refused in such cases it does not amount to abuse of tbe discretion by tbe trial court. State v. Riley, supra.
It is true that considerable publicity was carried by tbe news media over television and radio throughout West Virginia and in newspapers which were published throughout tbe State of West Virginia, and if tbe same evidence and exhibits were presented in other counties to wbicb a change of venue might be granted and tbe ruling of this Court adhered to, it may be possible tbe defendant could not be tried for this alleged offense in any county in tbe State of West Virginia. This certainly would not be a good situation for the administration of justice in West Virginia.
Considering all tbe facts and circumstances surrounding tbe case at bar, I am of tbe opinion that tbe trial court did not abuse its discretion in the refusal to grant tbe defendant a change of venue. This is shown by tbe full bearing and consideration given to *574this motion by the trial court on the day it was set for trial necessitating a continuance thereof until the hearing on the motion was disposed of. Then, too, the record of the trial clearly indicates that the defendant received a fair trial and a verdict of guilty returned by the jury was justified.
As was held in the case of State v. Riley, supra, there exists another controlling reason for the refusal to grant a change of venue in the instant case, and that is because of the fact that it was not timely made. The motion in the Riley case for a change of venue was made after other motions were made and ruled on by the court and it was held by this Court in that case, which was decided only a few months ago, citing authorities, that it is uniformly the law that a motion for a change of venue must be presented at the earliest practical moment. It certainly can not be said that the motion for a change of venue in the instant case was made at the earliest practical moment. Obviously, there was no intention to make such motion until it was ascertained what the ruling would be on other pleas and motions because if they were favorable the motion for a change of venue would not be necessary. In such cases the right granted to a defendant for a change of venue is waived unless such matter that would warrant a change of venue because a fair trial could not be obtained was not known before other motions, pleas, etc. had been filed and disposed of. This is clearly not shown in the case at bar, and this motion should have been made first. The record shows that the indictment was returned against the defendant on January 18, 1965; that a demurrer was filed alleging the indictment was not sufficient in law on February 5, 1965; a motion to quash the indictment was filed on February 5, 1965; and a plea in bar, later styled plea in abatement, was filed on February 5, 1965, all of which were overruled either by sustaining the demurrer filed thereto or otherwise, and on February 11, 1965, a motion for a bill of particulars was filed which motion was granted and a bill of parti*575culars filed on March 12, 1965. On March 10, 1965, a petition containing a written motion to furnish the minutes and records of the proceedings before the grand jury was denied by the court. It was not until the day this case was set for trial, on March 16, 1965, that the defendant presented to the trial court his petition for a change of venue, after which a full hearing was held as aforesaid and the motion overruled on March 16, 1965, after which a motion for continuance was made and overruled and the case proceeded to trial.
It was held in the Riley case that: “The general rule is that an application for a change of venue comes too late if it is made after submitting other questions for the court’s determination.” It has also been repeatedly held that a motion for a change of venue comes too late after the case has been reached for trial and immediately before the jury has been impaneled and that a trial court does not abuse its discretion in refusing to grant a motion for a change of venue made on the day of the trial, and that it is not error for a trial court to deny a motion for a change of venue where the motion is not made until after the court has denied the motion to quash the indictment and has partially denied the motion for a bill of particulars and has denied a motion for a continuance because such motion is not timely made. State v. Riley, supra.
It can readily be seen that this Court has heretofore held that under facts and circumstances similar to those in the instant case a trial court does not abuse its discretion in the refusal to grant a motion for a change of venue and it is not reversible error in so holding. What was the law in this State three months ago should be the law now and neither the case of State v. Hamric, supra, nor the case of State v. Riley, supra, has been overruled.
As stated above, the defendant not only received a fair hearing on the motion for a change of venue *576and the trial court did not abuse its discretion in the denial of such motion, but the evidence introduced during the trial of the case shows that the defendant received a fair trial because apparently his only defense, which is not a legal defense, was that the principal, Ruth Maley, made him submit false invoices before he could receive payment for work performed by his company. The evidence shows that false invoices submitted by Alex Dandy showing work purportedly performed by other companies which as actually done by the Pioneer Construction Company were used by Ruth Maley to falsify the records in the transmittal of such invoices and she knew and personally did such falsifying of the records after which he knowingly received checks in the names of fictitious companies for work performed by the Pioneer Construction Company, all of which makes Dandy an accessory, the crime for which he was charged.
For the reasons stated herein, I am compelled to dissent from the majority opinion in this case.