CONCURRING OPINION
McDonald, judge.I agree with the result reached by Presiding Judge Morrison in his opinion reversing this case. However, I desire to elaborate more fully on the error of the trial court in refusing to grant the motion for change of venue. I shall recite in detail some pertinent facts in the case pertaining to the venue question.
The trial of this cause started February 10, 1964, with a change of venue proceed*796ing. It culminated the following March 14, 1964, with the death penalty verdict. The hearing on venue and subsequent proceedings took place in the same building to which Lee Harvey Oswald was being moved at the time he was shot. This same Ruby trial building is situated approximately one hundred yards from where Lee Harvey Oswald assassinated President Kennedy two days previously.
It is apparent from the record that President Kennedy’s assassination occurred at a site on a Dallas Street so close to the Ruby trial courthouse that it could be seen daily by the jurors. At the time of this trial this location was being visited by the public who were placing wreaths at the historic spot out of respect to President Kennedy. Traffic was even then becoming jammed in the area by spectators.
Dallas was being blamed directly and indirectly for President Kennedy’s assassination and for allowing the shooting of Oswald by Ruby. The feeling and thought had been generated that Dallas County’s deprivation of prosecuting Oswald could find atonement in the prosecution of Ruby. The writer feels it fair to assume that the citizenry of Dallas consciously and subconsciously felt Dallas was on trial and the Dallas image was uppermost in their minds to such an extent that Ruby could not be tried there fairly while the state, nation and world judged Dallas for the tragic November events.
The press had a field day with stories stating directly, indirectly, by hints and in-nuendoes that a Communist conspiracy existed between Oswald and Ruby. Ruby was referred to as a “tough guy,” a “Chicago mobster,” a strip-joint owner. Anti-Semi-tism against Ruby was sparked by pretrial publicity that Ruby’s name had been changed from Rubenstein to Ruby.
The strong local prejudice against Ruby was reflected in the refusal of the County-operated Parkland Hospital to permit Ruby to undergo neurological testing for the purpose of determining his organic brain condition for trial purposes.
The trial judge retained the services of a prominent public relations counselor to handle the courtroom seating, the press, the trial publicity, and public relations in advance of the venue hearing and for the entire trial. Some 300 members of the news media occupied most of the seats in the courtroom.
The fact of the shooting of Oswald had been seen on television many, many times on that fateful day, November 24, 1963, in the Dallas County area, by countless thousands of citizens. This alone precluded Ruby from receiving a fair and impartial trial by a Dallas County jury. A fair and impartial trial is the rightful boast of western civilization.
Against such a background of unusual and extraordinary invasions of the expected neutral mental processes of a citizenry from which a jury is to be chosen, the Dallas County climate was one of such strong feeling that it was not humanly possiblq to give Ruby a fair and impartial trial which is the hallmark of American due process of law.
The late, eminent Mr. Justice Frankfurter stated in his concurrence in Irving v. Dowd, 366 U.S. 717, 729, 730, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751:
“ * * * rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused? A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.”
*797Ten of Jack Ruby’s trial jurors witnessed the shooting of Oswald on television. They were challenged for cause under Article 616, Vernon’s Ann.C.C.P., which prohibits a witness serving as a juror. Such challenges for cause were summarily dismissed and disposed of by the trial judge with dispatch.
Other than the testimony on voir dire of jurors Shields and Malone, we shall pre-termit detailing the voir dire examination of the jurors.
Juror Shields witnessed the shooting on television. She was objected to as being a witness to the offense as well as the others who saw it on television. The trial court refused to grant Ruby an additional peremptory challenge so that he could remove her as a juror. Ruby moved the Court to swear Juror Shields as a witness and the Court refused.
Juror Malone was a witness to the shooting on television and was objected to as being disqualified under Article 616, V.A.C. C.P. She knew that from what she had witnessed on television that Oswald was shot in the Dallas Police Station November 24th and subsequently died as a result of being shot with a pistol. It was the most extraordinary thing she had ever witnessed.
Nothing could remove her fixed knowledge of Oswald’s being shot in the Dallas Police Station. The only thing she did not know about the case as a fact was who fired the gun. All other issues pertaining to the shooting of Oswald were firmly and permanently fixed in her mind. She subsequently learned from television that it was Ruby who shot Oswald.
The trial judge seated her as a juror over the protest of Ruby’s counsel who insisted upon being given additional peremptory challenges in order that she might be challenged as an objectionable juror.
The crux of Juror Malone’s disqualification as a juror is explicitly reflected in the following excerpt during her voir dire examination :
“Q. But you do say that from what you have seen and read, it is firmly fixed in your mind that this extraordinary shooting you witnessed was to the effect that Oswald was shot that Sunday morning, in the police station, and the only thing you don’t have fixed in your mind is who did it. Is that right?
“A. That’s right.
“MR. TONAHILL: May it please the Court, we exercise and invoke Article 616, Code of Criminal Procedure, and ask that the lady be excused for cause.
“THE COURT: Overrule your challenge.
“MR. TONAHILL: Exception.”
Article 616, V.A.C.C.P. (6) commands and requires that witnesses to the charged offense cannot serve as jurors. The Supreme Court of the United States in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, has held that such objectionable jurors as Shields and Malone were, in effect, witnesses to the offense. Further, that Court has held that even non-witnesses who have been saturated with prejudicial news releases and rumors, and who hold a state of mind as objectionable jurors Shields and Malone possessed were not qualified as fair and impartial jurors, Irvin v. Dowd, supra.
There can be no difference to the competency of a witness who has heard via telephone or radio, or saw a matter through a mirror or field glasses, and a witness who has viewed a matter on television. A contrary holding would undermine the sound principles underlying the utilization of a scientific amplification and reproduction of sensory events, and thus unduly hamper the work and function of the triers of fact. In short, the television viewer meets the *798established criterion of personal observation required for a witness’ competency. Estes v. State of Texas, supra. The State operated from this inevitable and certain principle when it introduced the television film of the shooting of Oswald before the jury as direct evidence of the shooting.
The trial court could not, consistent with the due process, assume that the objectionable jurors Shields and Malone were endowed with a sense of detachment, so clear in introspective perception of their own mental processes that they could possibly exclude even the unconscious influence of their preconceptions as to all the established facts except identity of Ruby. Their mental processes were engendered by a pervasive pretrial publicity which denied Ruby his guarantee of a fair trial by a panel of “impartial, indifferent” jurors; because, “[t]he failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642.
Against this background of crystalized opinions of the existence of the material issues with which the State was burdened to prove, Jack Ruby was forced to trial under the most adverse, unusual and extraordinary circumstances that this member of this Court has yet had occasion to consider.
It is stated in Estes v. State of Texas, supra:
“A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television will inevitably result in prejudice. Trial by television is, therefore, foreign to our system.”
It was established below on the hearing for change of venue, the jury voir dire, and the quick verdict that the firmly established legal principles of law in this state and nation cried out for a change of venue of this case, which would guarantee Ruby the fair and unprejudiced trial which he failed to receive. At the same time, such transfer would cast no reflection, indictment against, or a challenge to the honesty, integrity or inability of the Dallas citizenry to give such. Rogers v. State, 155 Tex.Cr.R. 423, 236 S. W.2d 141.
In the brief of the Friends of the Court, and during his oral argument at the Bar before this Court when he appeared under the designation of this Court as “Friend of the Court,” trial counsel Tonahill ably urged and pointed out this basic principle of our jurisprudence which this Court has consistently followed.
The principles compelling a change of venue have been enunciated by this Court many times. Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742; Coffman v. State, 62 Tex.Cr.R. 88, 136 S.W. 779; Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239; also see: Cortez v. State, 44 Tex.Cr.R. 169, 69 S.W. 536, 537, and Manley v. State, 62 Tex.Cr.R. 392, 137 S.W. 1137.
The general rule that a change of venue lies within the sound discretion of the trial judge has to give way when an unfair jury is forced on one charged with crime.
It is to be noted that all twelve of Ruby’s jury entertained some conceptions of his guilt, one way or the other. The people of Dallas County had been exposed repeatedly and in great depth to the actual shooting of Oswald on television re-runs. In a similar case, Rideau v. State of Louisiana, supra, the Supreme Court of the United States did not bother to look to the transcript of the voir dire in reaching its determination as to prejudice:
“ * * * [W] e do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, the due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’ * * *” 373 U.S. 723, 727, 83 S.Ct. 1417, 1419.
*799This Court has been furnished with many outstanding briefs and many oral arguments were made by a battery of very able lawyers on both sides. This writer has been especially impressed with the conduct of Honorable Joe Tonahill. Through much stress and strain, misunderstanding among client and appellant’s relatives, he has exemplified the highest standards of the legal profession, remained true to his duty, and done an outstanding job in briefing and presenting this case before this Court.
I concur in the reversal of this cause.