The opinion
Jim Johnson, Associate Justice, dissenting. I agree with every word of Mr. Justice Robinson’s dissenting opinion in this case and in addition to the reasoning thereof I would also reverse because of the refusal-of the trial court to grant defendant’s Petition for Change of Venue.
I recognize'that where a Petition for Change of Venue is controverted by the State and controverting evidence is offered, it is a matter of the court’s sound discretion as to whether the petition should be granted. Leggett v. State, 227 Ark. 393 , 299 S. W. 2d 59 . On the other hand, this does not mean that the court may arbitrarily deny such a petition merely because it is controverted or merely because there is controverting evidence produced. I am firmly convinced that in denying this petition the trial court misconstrued the rule of the Leggett case, supra, and abused his discretion. Apparently, the trial court felt that the Leggett case held that if prospective jurors, examined before the petition is heard, do not disqualify, the petition should be denied. It should be noted that over the protest of the appellant, and before evidence was taken on his Petition for Change of Venue, the trial court had the Clerk call the 27 jurors left on the panel of 50 and the court asked three general questions of this group. These questions were whether any member of the panel knew of any reason why he should not serve on the jury in the case and whether what the members of the panel had seen, read and heard about the crime .would prevent them from giving both the State and the defendant a fair and impartial trial. Some of the panel answered “No, sir” and the court asked one other question requesting any member of the jury who had his mind made up to so indicate. This question was not answered. As previously indicated, this was done over the protest of the appellant and when he did not have an opportunity to interrogate said jurors, even though he told the court that he had 40 or 50 questions to be addressed to every member of the panel. The court’s erroneous misconception of the holding of the Leggett case becomes even more demonstrable by a reference to the record wherein the oral statement of the court denying defendant’s Petition for Change of Yenue is set forth verbatim. In denying this petition, the court made it .abundantly clear that he based his ruling wholly and solely upon the answers of the jurors to the three questions heretofore set forth ancl that he had not considered .the evidence which ivas adduced in support of and in •opposition to the Petition for Change of Venue. 1 do not believe that the holding of the Leggett case may be so simplified. In the Leggett case, the Petition for Change •of Yenue was filed on the 3rd day of the trial supported by the affidavits and testimony of two witnesses. One of these witnesses knew little about the sentiment in the •county except that prevailing in two wards in Little Rock. It cannot be said that this made even a prima facie showing as it is necessary that at least two of the affiants ■or witnesses know the state of mind of the inhabitants of "the whole county. Brown v. State, 134 Ark. 597 , 203 S. W. 1031 . The court held in the Brown case that if a witness was not acquainted with the sentiment over the county generally, the trial court was at liberty to find that he was not a “credible person” as required by the statute. Further, at the time of the hearing in the Leggett case, •eleven jurors had already been chosen, and this Court •said on appeal:
“Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment, the court was entitled to consider the view of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a studied effort to inflame the public. Meyer v. State, 218 Ark. 440 , 236 S. W. 2d 996 . Despite the defendant’s theory that it was impossible to obtain a fair-minded jury within the county, the court was convinced by testimony heard at first hand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority. ’ ’
The facts in the case at bar and those in the Leggett case are completely different. Where the appellant Leggett did not have two “credible” witnesses on his petition, appellant here had three witnesses who met the test of the statute together with several others who corroborated these witnesses as to particular sections of the county. Appellant’s three witnesses were the Hon. Dan Sprick, State Senator of Pulaski County, a former Mayor and Alderman of the City of Little Bock; Mr. Noble Strait, a competitor of the appellant; and Mr. B. C. Limerick, Jr. I will not take space to identify all of the supporting witnesses; suffice it to say, their testimony may be found in the record. There is another striking-difference between the Leggett case and the case at bar in that the court said in the Leggett case that there appeared to be no studied effort on the part of news reports to inflame the public. In this case, the trial judge himself said: “I will take judicial knowledge that the Gazette is a pro-integration newspaper.” On the hearing on the petition, 93 news articles, pictures, cartoons and editorials from the two Little Bock newspapers were offered in evidence. I say that those articles, pictures, cartoons and editorials did represent “a studied effort to inflame the public”. It cannot be said that cartoons on the editorial pages bearing such captions as “Wanted — Public Enemy No. 1”; “Triumph of Law and Order”; and “Tall in the Saddle” were not studied efforts to inflame the public against this appellant. There were editorials bearing such captions as “Fast Work in the Bombing Case” wherein it was asserted that the leaders moved with great speed and determination to “track down the guilty parties” and those who underwrote a reward fund of $25,000 for arrest and conviction were commended; editorials captioned ‘ ‘ The Performance of Little Bock’s Finest” wherein the news organ commended “swift decisive work of the Little Bock Police and the Federal Bureau of Investigation” together with the diabolically clever suggestion (intended to warp the public’s mind as to the burden of proof in a criminal case) to the effect that the defendants would receive a fair trial; “with ample opportunity to clear themselves if they are innocent;” editorials captioned “fog” suggesting that the defendants were communists and that they should he checked out on this score hy the F. B. I.; and editorials captioned “An act of terror — and its roots” wherein it was suggested that the only redress for the damage done: “lies in what we now do — in our clear demonstrations that we will no longer tolerate apostles of discord, the preachers of dissention and the advocates of rebellion who have brought this shame upon our city.” These cartoons and these editorials represented studied efforts to inflame the public and to preclude appellant from receiving a fair trial. The action of the Prosecuting Attorney in publicly stating that defendant’s $50,000 bond should not be reduced and that: “this defendant has largely forfeited his right in organized society ’ ’ can hardly be viewed as an effort to assure to the appellant a fair trial by unbiased jurors. In fact, in Sisson v. State, 168 Ark. 783 , 272 S. W. 674 , it was held that where a sheriff had, in his campaign for election, made speeches over the county wherein he stated that he was going to send the defendant “to hell or the penitentiary one, if he was elected sheriff” was such as to create prejudice in the minds of the inhabitants of the county against the defendant and furnished full justification for the belief of an affiant that the minds of the inhabitants of the county had been prejudiced against the appellant. The record shows that Mr. Holt was three times honored with the office of Prosecuting Attorney by the very people from whom prospective jurors would be selected. The actions of the Pulaski County Bar Association in adopting resolutions condemning participants in acts of terrorism and commending the law enforcement officers for their activities; contributing to-the Chamber of Commerce reward fund and advising the law enforcement officers and the officials of the county that: ‘ ‘ This Association, upon request, will assist in any wray possible in the investigation of the said explosion or the prosecution of persons charged with responsibility therefor” were certainly not calculated to insure a fair trial to appellant. Lawyers are leaders in the community and when a whole county bar association arrays itself on the side of the prosecution before trial and without fee or hope of reward offers to prosecute the persons-charged with the crimes, it cannot help but engrave an impression upon the minds of the public to the effect that those charged are guilty. When business and professional leaders in the community are quoted in the press as condemning the crimes in question, it cannot be said that such statements do not work grave damage to the cause of a defendant awaiting trial on such charges. When the President of the Little Rock Council of P. T. A. says: “I think the penalty should be a stiff, severe one”; such a statement cannot be said to be creating an atmosphere of sweetness and light for a trial of the charges. When the District Superintendent of the Methodist Church and the Episcopal Bishop of Arkansas condemn the acts in public news stories and the Bishop calls for: “A common effort to guard the safety of every man, woman and child who inhabits the city”, how can it be said that these news stories would not work for the conviction of the defendant as surely as the testimony of an eye witness ?
When it is shown that these statements of condemnation by community leaders were published in one newspaper with an average circulation of 45,683 in the county of venue and another newspaper with a circulation of 44,000 in the county of venue and it is further shown that the same matters were given publicity by television and radio, I respectfully submit that such publicity cannot be said to have no effect upon the minds of prospective jurors. This was not an ordinary case where a juror may have read one or two newspaper articles. This was a situation where there had been incessant publicity from the very beginning. When the business manager of the Arkansas Gazette said: “We have run more than one editorial with respect to acts of terrorism and have even offered cartoons and we are quite proud of the orbit of accounts. We hope that people will form an opinion from what we say,” it certainly cannot be said that the news reports, cartoon pictures, and editorials in ■ that publication were not a studied effort to inflame the public. When the Chamber of Commerce can quickly raise $25,000 to prosecute the persons charged with the crime, it can hardly be said that the contributors to such fund are indifferent.
Regardless of the guilt or innocence of a person or persons being tried for the commission of a crime, basic concepts of our system of justice demand that every defendant receive a fair trial by a fair and impartial jury. I sincerely fear that the opinion of the majority in the case at bar holding that those things pointed out by Mr. Justice Robinson, and the results of the conduct of prominent persons and newspapers, as set out above, do not constitute, error, has effectively deprived this defendant and by precedent all citizens of this State of the precious right of a fair trial by a fair and impartial jury. For these reasons I cannot conscientiously do less than dissent to the opinion of the majority with all the vigor at my command.