dissenting:
I respectfully dissent. In my view the instant case does not fall within the ambit of Sheppard, and on the contrary is distinguishable therefrom.
There are, of course, similarities between Walker and Sheppard, most of which have been duly chronicled in the majority opinion. However, I myself have considerable doubt as to the “massive” proportions of the pretrial publicity in the instant case, as in my best judgment such pre-trial publicity was not nearly so “massive,” or “prejudicial” for that matter, as that in Sheppard, and much of it occurred many months prior to trial. As concerns massiveness, I would simply point out that the Denver Post as of 1949 had a daily circulation in Boulder County of some 6,900 and the Rocky Mountain News a daily circulation in that same county of about 1,900. And the population for Boulder County in 1950, according to the Colorado Year Book for 1950, was some 48,296. Whether these circulation figures equate to “massive” pre-trial publicity which in practical effect inundated the entire community is in my mind very questionable.
But even assuming that there was massive and prejudicial pre-trial publicity, there is one very important distinction between the instant case and Sheppard, and that is the conduct of the trial itself. The Sheppard trial was characterized as being of the Roman Carnival variety, with the trial judge surrendering the courtroom to the communications media. And in this unusual setting the jury then was apparently not even sequestered during the actual trial. In contrast, Walker’s trial was definitely not of the Roman Carnival species and this fact I believe to be conceded by the majority. Indeed this Court did itself on writ of error affirm Walker’s conviction and thereby in effect — if not in so many *489words —■ approved the general conduct of his trial. Walker v. People, 126 Colo. 135, 248 P.2d 287.
■As I understand it, then, the majority and I do agree in one particular, at least, and that is that there is a difference between the Sheppard case and the instant one. However, the majority apparently deem this difference to be of no particular moment, whereas I on the contrary deem this difference to be of real significance and great import. And as I read the Sheppard case, the United States Supreme Court itself placed great emphasis upon the failure of the trial judge to take necessary measures during the actual trial to insure Sheppard his constitutionally guaranteed right to a fair trial. In my opinion that Court indicated quite clearly that it was not reversing Sheppard’s conviction on the basis of pre-trial publicity alone, but was reversing primarily because of the irregularities attendant to the conduct of the trial proper. In other words, then, that which tipped the scale in the Sheppard case is in nowise present in the instant case, and hence my inability to fathom just how the Sheppard case somehow commands a reversal of Walker’s conviction.
In support of my conclusion that the United States Supreme Court did not reverse Sheppard’s conviction because of pre-trial publicity alone, I quote from Sheppard v. Maxwell, supra, as follows:
“While we cannot say that Sheppard was denied due process by the judge’s refusal to take precautions against the influence of pre-trial publicity alone, the court’s later rulings must be considered against the setting in which the trial was held. In the light of this background, we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of this ‘judicial serenity and calm to which he was entitled.’ * * * The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. * * *”
*490In my view by reversing Walker’s conviction on the basis of pre-trial publicity alone, which is what the majority of this Court has now done, this Court has pried open a real Pandora’s box. Now, apparently, all convictions are subject to a new review to determine whether any publicity preceding a particular trial was massive and prejudicial and if we by judicial fiat say it was, then the particular conviction under consideration is summarily reversed by us on the grounds that the trial was presumptively unfair — even though as here the trial court based on competent evidence before it found to* the contrary — and a new trial, if such still be possible and feasible, ensues. I for one am reluctant to go back 20 years and reverse a conviction solely on the basis of stale newspaper clippings, and in my best judgment the Sheppard case does not require such a result.
My analysis of the Sheppard case squares pretty much with that set forth in Corbett v. Patterson, 272 F. Supp. 602, and I subscribe to the rationale of that case. In that case appears the following:
“Petitioner apparently reads Sheppard as holding that where a community has been exposed to considerable prejudicial pretrial publicity, it must be presumed that his trial was not fair and impartial. We do not so read the case.”
In this particular connection I would simply add that I too do not so read Sheppard.