Opinion
Wellington D. Rankin and Arthur P. Acher, Helena, for appellant.
Keeley, McElwains&sRyan, Deer Lodge, for respondent.
ANGSTMAN, Justice.
On motion for rehearing it is suggested that the effect of our decision is to deprive defendant, as executor, of a defense which was available to Wilbur C. Cook contrary to section 93-2824, R.C.M.1947.
A motion seeking a change of venue under section 93-2906 is not a defense within the meaning of section 93-2824.
The executor, like any other defendant, may have a change of place of trial under section 93-2906 upon a proper showing that 'there is reason to believe that an impartial trial cannot be had' in the county therein the action is pending. Here the evidence showing prejudice is sharply denied and, as pointed out in the opinion, it does not appear that the court abused its discretion in denying the motion.
It is also contended that the majority opinion herein places a greater burden on defendant than should be required, when we permitted defendant to renew his motion if it be found that a fair and impartial jury could not be obtained.
Appellant contends that this rule conflicts with the case of State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026, 1031. The facts in this case are not comparable to those involved in that case. In the Spotted Hawk case there was a strong showing of prejudice not only against defendant but against the tribe of Indians of which defendant was a member. People in all parts of the county armed themselves and threatened to exterminate the tribe of Indians. The court in that case recited the facts showing prejudice against defendant as shown by his affidavit as follows: 'That the people were greatly excited in all parts of the county; that cowboys and ranchmen to the number of 200 had left their homes, and gathered at a ranch, near the Cheyenne Indian Agency; that these men were armed; that they had gathered together to force the Indian agent to surrender the murderer of Hoover, claiming that the murderer was a member of this tribe; that it was their intention, if the murderer was not surrendered, to go upon the reservation, and exterminate the tribe; that they, in furtherance of this object, gathered ammunition and rifles from Miles City and eastern cities; that cartridges and rifles were sent to them from other parts of the county; * * * that the excitement was so great that the military authorities sent several companies of soldiers to prevent an outbreak.' The court indicated that in many respects these statements were corroborated.
There were newspaper articles complained of also, and as to these the court said: 'The newspaper clippings introduced at the hearing are of no value whatever as evidence of the facts and statements set forth in them; but, mindful of the hereditary enmity and antipathy existing between the whites and the Indians wherever they have lived in proximity with each other in this western country; mindful, also, of the fact, which is a matter of history, that there have during recent years been troubles between the whites and the Indians in various parts of the country,--the fact that these publications were made during a period of five weeks, extravagant and inflammatory in their character, would lead one to believe that the readers of them would be more or less excited by the statements contained in them.'
The publications and radio broadcasts here complained of cannot be characterized as calculated to do more than give an account of the events as they occurred and of course were and are of no value as evidence of the facts and statements made.
The court in the Spotted Hawk case after referring to the facts recited in defendant's affidavit said: 'If these statements of the defendant were not true, it could easily have been shown that they were not. They are not seriously controverted.'
Here every fact indicating any prejudice on the part of the public against Cook is denied. Here, unlike the Spotted Hawk case, there was no action by the public indicating any prejudice against Cook. This being a civil case, there seems to us no basis upon which to hold that an impartial trial cannot be had in Powell County or that the trial court abused its discretion in denying the motion for change of venue.
The showing that there exists no 'blaze of excitement and passion' (which was the basis of the holding in the Spotted Hawk case) against Cook or the executor of his estate was at least as strong as the showing that there was such excitement.
We call attention again to the fact that the posse that was drawn by the sheriff was called to apprehend Cook and not to kill him.
We think every right of defendant is protected here, under the showing made, by permitting a renewal of the motion for change of place of trial if it appears at the trial that a fair and impartial jury cannot be obtained, particularly since it is now two years and nine months since the events took place and more than one year and seven months since this action was commenced and the order appealed from was entered. Prejudice, if any, may have subsided with the passage of time. State v. Searle, 125 Mont. 467, 239 P.2d 995.
The motion for rehearing is denied.
CASTLES, J., and GUY C. DERRY, District Judge, sitting in place of HARRISON, C. J.
BOTTOMLY, Justice.
I dissented when the majority opinion was handed down. In my opinion, my dissent stated the law applicable therein that section 23-2906, R.C.M.1947, is mandatory. A change of place of trial should be granted.