(dissenting). I respectfully dissent from the opinion of the court insofar as it holds sec. 956.03, Stats., prohibits a change of venue in misdemeanor cases and that such legislative prohibition is constitutional.
To understand what the majority has done, it is necessary to review the facts. It is crystal clear from the record that the defendant moved for a change of venue on the basis of community prejudice. Such prejudice was alleged in the underlying affidavits supporting the motion. The defendant’s trial counsel also asked that the court take judicial notice of the “massive coverage by all news media in this community of the activities of this defendant ... or, in the alternative, that the defendant be permitted to offer proof of the nature and extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.” This motion was denied in its entirety. The reason for such a denial, including the reason for the refusal to hear evidence of prejudice, is made clear by the remarks of the trial judge following the denial of the motion.
Counsel asked if the court was denying the motion “because the statute will not permit a change of venue on the grounds of community prejudice . . . .” The court replied, “No, I’m denying the motion . . . because this is a misdemeanor case and not a felony. And the Wisconsin Statute does not provide for a change of venue in a misdemeanor matter.”
It is thus apparent that the judge refused to hear evidence on community prejudice solely because he concluded *326that the statute gave him no jurisdiction to order a change of venue even if community prejudice were shown.
This, I conclude, is a clear error of law, and the statute as so construed was applied unconstitutionally. The statute is procedural only. It merely specifies the duty of the judge when prejudice is apparent and the defendant is charged with a felony. It is silent upon the duty of a judge in the event one charged with a misdemeanor asks for a change of venue because of community prejudice. The prohibition that the trial judge found, at least by implication, in the statute is not apparent to this writer.
We have heretofore held, in State v. Nutley (1964), 24 Wis. 2d 527, 129 N. W. 2d 155, overruling, sub silentio, State ex rel. Carpenter v. Backus (1917), 165 Wis. 179, 161 N. W. 759, to the contrary, that a change of venue for community prejudice is a constitutional right independent of the legislative procedural implementation. In Nutley, page 566, we pointed out that the portion of sec. 956.03 (3), Stats., providing, “Only one change may be granted under this subsection,” was subject to the due process limitations of the fourteenth amendment to the United States Constitution.
In effect, this court recognized, at least in a felony case, that the power of a court to order a change of venue arose not from the statute but from its inherent power to act to assure a fair trial, and, as required, by the fourteenth amendment.
Are there any reasons why this constitutional assurance of a fair trial by the device of change of venue should be available only to one charged with a felony and not to an alleged misdemeanant?
The majority opinion concludes that it is just and proper to afford fewer constitutional guarantees of fairness to a misdemeanant than to a felon. On the face of it, this proposition runs counter to all principles of Anglo-American jurisprudence; however, factual distinctions, it is contended, make it fair to afford fewer protections to one charged with a misdemeanor. It is asserted in the *327opinion of the majority of the court that the penalties are more severe in the case of felonies. This is, of course, true, but it is a fact entirely irrelevant to the issue. It is, in essence, an assertion that an unfairness that results in only a small sentence is of such a minor consequence as to be de minimis. The mere statement of the proposition is its own refutation. Concededly, the legislature has seen fit to confer additional safeguards to defendants accused of major crimes (preliminary hearing, e.g.); however, it is powerless to reduce the minimum safeguards of fairness that are assured by both the Wisconsin and United States Constitutions to all criminal defendants.
The opinion of the court also asserts that community prejudice is not aroused by the commission of a misdemeanor and that, therefore, a change of venue is needless. The simple answer to this proposition is that if there is no community prejudice, it is within the discretion of the trial judge to deny a change of venue. This determination is dependent upon the facts as they subjectively appear and not upon the objective nature of the crime or whether it is labeled a felony or a misdemeanor. The identity of the defendant and his image in the community is also relevant and may be a determining factor in whether or not there is community prejudice, irrespective of the nature or seriousness of the crime charged.1 To *328say that the public is not prejudiced or enraged by the commission of a misdemeanor begs the question. That is precisely what a hearing for a change of venue is intended to determine, and this is what the defendant herein sought to prove. For this court to decree that prejudice will henceforth not exist in a trial for a misdemeanor is reminiscent of King Canute’s edict to hold back the tides.
It is, of course, true that it will be only the unusual and infrequent misdemeanor cases that will become a cause celebre and arouse popular passions. Granting the premise, on which the majority opinion is in part based, that there will be few misdemeanors that will arouse the emotions of the public, how can the rare case so clog the courts with motions for change of venue that the efficient and expeditious disposition of criminal cases will be in jeopardy. The majority opinion’s fears are of a bogeyman of court congestion which its own reasoning shows to be without foundation. Moreover, there is no reason why this court should assume that motions for change of place of trial will be abused or that our courts are so supine as to tolerate such abuse.
While it may be conceded that proeedurally it is within the legislature’s power to adopt more expeditious methods of handling misdemeanors than felonies, it may not do so if constitutional rights are thereby encroached upon. The legislature may grant the right to a preliminary hearing to a felon, but not to a misdemeanant, but this right is statutory not constitutional. For example, it cannot, under the aegis of greater efficiency in the administration of justice, deny misdemeanants the right to jury trial guaranteed by the Wisconsin Constitution. While efficiency and economy are of great significance in cases where the courts are free to act one way or the other, they have no place in the situation now before us, where this court, as well as the legislature, is answerable to the constitution.
The recent United States Supreme Court decision, Duncan v. Louisiana (1968), 391 U. S. 145, 88 Sup. Ct. *3291444, 20 L. Ed. 2d 491, pointed out that under the sixth amendment and the fourteenth amendment to the United States Constitution petty offenses could be tried before a judge only. This decision, of course, does not obviate the necessity for a jury trial for misdemeanors in a state like Wisconsin, where a jury trial is available to all defendants. Duncan, however, makes it crystal clear that a trial, before whomsoever held, must be fair. Mr. Justice Harlan, although dissenting in Duncan and agreeing that a state by its own constitution should be able to determine the necessity of a jury trial, stated there were nevertheless certain prerequisites to a system of ordered liberty, one of them being a fair trial. He said, “I should suppose it obviously fundamental to fairness that a ‘jury’ means an ‘impartial jury.’ ” (pp. 181, 182.)
In the instant case, a jury is guaranteed by the Wisconsin Constitution, and Duncan makes it clear that a jury must be impartial. A litigant is constitutionally entitled to invoke the device of change of venue to determine whether or not a trial may be had free from the contamination of community prejudice. Where the trial of a misdemeanant is before a judge, under Wisconsin law he may file an affidavit of prejudice if he thinks it necessary to assure a fair trial. He should not have a lesser right to a fair and impartial trial if he invokes his constitutional prerogative of trial by jury.
Nor is State ex rel. Plutshack v. H&SS Department (1968), 37 Wis. 2d 713, 155 N. W. 2d 549, 157 N. W. 2d 567, relevant to this case. Contrary to the assertion of the majority opinion, this court, therein, was not influenced or controlled by sec. 957.26, Stats. It was controlled by the rulings of the United States Supreme Court which have been interpreted to mean that there shall be counsel whenever a “substantial sentence” may be imposed. The opinion of the court in Plutshack was influenced by legislation only to the extent that we concluded that congressional legislation (Criminal Justice Act of 1964) was declaratory of constitutional requirements.
*330In the instant case we have elevated the legislature’s enactment of sec. 956.03, Stats., to the status of a limitation on the constitutional rights of citizens accused of crime. To do so is, I believe, a misinterpretation of a statute the legislature intended to be procedural only and constitutes an abdication of a constitutional responsibility of this court.
We are herein in no way bound or guided, as we said we were in Plutshack, by legislation that appears to us to be declaratory of a proper constitutional standard already found by the Supreme Court of the United States. In the instant case what the legislature had to say about change of venue in felony cases is irrelevant to a constitutional right of an alleged misdemeanant.
This writer is of the opinion that the trial court and the majority of this court interpreted the statute in such a way as to deprive misdemeanants of important constitutional rights. In State ex rel. Ricco v. Biggs (1953), 198 Or. 413, 255 Pac. 2d 1055, the Oregon Supreme Court, faced with a similar statute, pointed out that such an interpretation violated the Oregon constitutional guaranty of a fair trial (similar to Wisconsin’s), as well as the due process clause of the fourteenth amendment. That court pointed out, as does this dissent, that the legislative enactment does not govern whether a misdemeanant is entitled to a change of venue, for the right to a changed place of trial depends not upon legislative consent but upon the constitutional right of fair trial.
It is the opinion of this writer that the inherent power of a court to order a change of venue for community prejudice is beyond question.
This writer would also conclude that in any criminal case a court of justice has the inherent duty, where the question is raised, to inquire into the matter of community prejudice and to hold a hearing in order to exercise its discretion in respect thereto. This duty is constitutional, not statutory, and in proper circumstances should be exercised sua sponte.
*331Nor can I agree with the majority opinion’s conclusion that even though a change of venue could or should have been granted, a fair trial is still assured by the procedures of the voir dire and motions after verdict.
This is hardly an argument for efficient judicial administration for if an atmosphere of prejudice or unfairness can be detected prior to trial, it is folly to spend the public’s money on a trial that will be set aside.
No doubt, motions after verdict are useful safety devices to correct error that perhaps has already occurred, but the goal of the proper administration of justice is the avoidance of error. The device of change of venue seeks the avoidance of error.
Moreover, the test of community prejudice is not whether an impartial jury can or cannot be impaneled but whether there is a “reasonable likelihood” that community prejudice exists. Sheppard v. Maxwell (1966), 384 U. S. 333, 86 Sup. Ct. 1507, 16 L. Ed. 2d 600.
The American Bar Association Advisory Committee on Fair Trial and Free Press at pages 126, 127, and 128 discussed the efficacy of the voir dire as a guaranty of a fair trial:
“It has in many jurisdictions been common practice for denial of such a motion to be sustained if a jury meeting prevailing standards could be obtained. There are two principal difficulties with this approach. First, many existing standards of acceptability tolerate considerable knowledge of the case and even an opinion on the merits on the part of the prospective juror. And even under a more restrictive standard, there will remain the problem of obtaining accurate answers on voir dire — is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community? Thus if change of venue and continuance are to be of value, they should not turn on the results of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone.
*332“The second difficulty is that when disposition of a motion for change of venue or continuance turns on the results of the voir dire, defense counsel may be placed in an extremely difficult position. Knowing conditions in the community, he may be more inclined to accept a particular juror, even one who has expressed an opinion, than to take his chances with other, less desirable jurors who may be waiting in the wings. And yet to make an adequate record for appellate review, he must object as much as possible, and use up his peremptory challenges as well. This dilemma seems both unnecessary and undesirable. . . .
“The suggestion of some courts that . . . [failure to exhaust all peremptory challenges] amounts to a waiver [of a right to transfer or continuance] seems to require the defendant to take unnecessary risks. If the defendant has satisfied the criterion for the granting of relief, it should not matter that he . . . has failed to use his peremptory challenges, perhaps because he prefers the ills he has to others he has not yet seen.”
In State v. Nutley, supra, pages 565, 566, this court accepted the conclusion that a voir dire does not necessarily assure a trial free from the contamination of community prejudice:
“The United States supreme court has held that even if a defendant has examined prospective jurors at length during a voir dire, and even if the jurors state that they will evaluate the issues only on the evidence presented during the trial, a defendant may still be denied a fair trial if prejudicial pretrial publicity is of such quantitative and qualitative magnitude that it is probable that the jurors predetermined the issue despite their protestations to the contrary. This rule of Fourteenth amendment due process is applicable even though the defendant may have received one change of venue, pursuant to a state statute similar to sec. 956.03, Stats.”
True, this court has in numerous cases looked to the voir dire to determine that a trial was free from the taint of prejudice. This technique, while efficacious in some cases, is directed primarily to the question of whether a trial judge abused his discretion in determining that the *333prejudice alleged or proved was not of such a nature as to prevent a fair trial. Here, abuse of discretion is not in question. The trial judge here relied upon his interpretation of a statute and concluded that he was precluded by law from granting a change of venue. Discretion was not exercised. Hence, the error was one of law and the usual voir dire cases are not directed to the issue raised herein.
Mason v. Pamplin (D. C. Tex. 1964), 232 Fed. Supp. 539, 540, 541, 542, 543 (affirmed Pamplin v. Mason (5th Cir. 1966), 364 Fed. 2d 1), a case involving the right of a change of venue in a misdemeanor case where the Texas statute referred only to felonies, stated:
“The record reflects that the prospective jurors, who apparently qualified as a group, stated that they did not know petitioner; that they had not formed any opinions in the case; and that they had no prejudices against the Negro race, or against a Negro acting as counsel for petitioner. No testimony on this question, other than the sworn statement of petitioner’s counsel, was offered at the hearing on the motion for new trial. ...
“Whatever doubt may have existed prior to 1960 with respect to the inherent right of an individual to a change of venue, if he demands a jury trial, and it is made to appear that in the county where the prosecution is begun an impartial jury cannot be impaneled, was dispelled by the Supreme Court in Irvin v. Dowd, 366 U. S. 717 . . . , when it recognized the proposition that a transfer may become a necessity, depending upon ‘the totality of the surrounding facts.’ Such ‘totality’ cannot be achieved if the court is precluded by law from hearing any competent evidence which may be offered before, during or after trial for the purpose of showing one’s inability to obtain a fair and impartial trial in a particular county. . . .
“The hearing on the change of venue is the first and most important step in ascertaining whether or not the accused can receive a fair and impartial trial in the county in which the prosecution is pending. The void which is left when the initial hearing is dispensed with could hardly be filled in a misdemeanor case, any more than it could in a felony case, by the subsequent voir dire examination of prospective jurors in a group, or by producing *334at a hearing on a motion for new trial testimony the Court has previously refused to hear. . . .
“If the allegations made by [petitioner] had been found to be true [at a venue hearing], he would have been entitled to a change of venue, irrespective of the fact that the jurors themselves as a group indicated that they had no prejudices. As the Supreme Court said in Dowd: ‘No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.’ 366 U. S. 717. . . .”
The denial of the defendant’s motion, which in the alternative asked for a hearing on community prejudice, denied the defendant (contrary to the assertion of the majority opinion) an opportunity “to make a record of community prejudice.” This is true because the judge made it clear that, in the case of a misdemeanor, community prejudice was irrelevant to a change of venue— there was just no statutory authority for such change. In motions after verdict defendant asked for a new trial on the ground, among others, that the court erred in denying the motion for change of venue on the assumption that the statute applied only to felony cases. This motion was again denied. The defendant also asked for a new trial on the ground that the one accorded him was unfair.
The defendant’s motion was denied without hearing or explanation. It is apparent that the trial judge, relying on his interpretation of the law, refused to look to the alleged facts of community prejudice, and afforded the defendant no opportunity to make a record.
I would reverse the judgment of the circuit court and order a new trial, directing the trial court that, in the event a motion for change of venue is made, to exercise its discretion to determine whether or not the facts adduced at hearing warrant the granting of a change of venue.
I am authorized to state that Mr. Justice Wilkie joins in this dissent.
The attorney general in his addendum to the district attorney’s brief acknowledged that, “Appellant is a controversial figure, but not only in Milwaukee county.” While this statement was made by the attorney general to show that a trial in another county might not result in a trial free from prejudice, it is equally probative of the assertion that the defendant could not have received a fair trial anywhere in the state. This, however, is no reason why a change of venue should not have been granted, for under Nutley, supra, this court has decided that the defendant is not remediless after one change of venue. If it developed that a fair trial could have been held nowhere in the state, a motion for continuance would then have been appropriate. The first obligation of the trial court was to consider a change of venue so the defendant could be speedily tried.