MR. JUSTICE ANGSTMAN:
This is an appeal by defendant from an order denying his motion for change of place of trial.
The action- was brought in Powell County, in behalf of the heirs of Melvin Earl McGraff, to recover damages for his wrongful death. The complaint alleges that defendant McGillvray is the executor-of the estate of Wilbur C. Cook, now deceased; that Wilbur C. Cook, on August 19, 1956, wilfully, unlawfully and wrongfully shot and killed. Melvin Earl McGraff with- a 25-35 Winchester rifle. This allegation was put in issue by the answer of defendant, and an affirmative defense was asserted to the .effect, that if Wilbur C. Cook killed Melvin McGraff it was done in self-defense. At the time of filing the answer, defendant filed a motion for change of venue in which it was alleged that defendant believes “an impartial trial cannot be had in the County of Powell.”
In support of the motion, defendant filed his own affidavit and the affidavit of Sandy O. Rierson and A. G. Cook, and asserted in the motion that it would be based also on such oral testimony as may be introduced at the hearing on the motion.
The affidavit of A. G. Cook set forth that he is not related to Wilbur C. Cook; that he lives in the vicinity of Avon; that ón the evening that Melvin Earl McGraff and another man named Homer B. Garren had been shot and killed while fishing in Nevada' Creek near the Wilbur 0. Cook ranch in Powell County, a posse was formed by the sheriff' of that county and a search was instituted for Wilbur C. Cook since “it was assumed that he had killed the two fishermen;” that Wilbur C. [258]*258Cook was shot and killed by the posse; that the killing of the three people was sensational news, furnishing a topic of conversation by word of mouth and a subject of radio broadcasting and newspaper publicity; that there was no investigation as to who killed the two fishermen until after the posse had shot and killed Wilbur C. Cook; that affiant has heard the matter discussed by residents of Powell County from all parts of the county and public feeling against Wilbur C. Cook was highly inflamed; that there exists a general feeling of hostility and prejudice against Wilbur C. Cook; that the newspaper and radio publicity all assumed that Cook was guilty of murder; that he has heard residents from all parts of the county express the opinion that Cook killed the two fishermen, Garren and McGraff, without cause or justification and that this is the fixed opinion in the county; that the executor of the Cook estate could not have a fair and impartial trial in Powell County by reason of the feeling of bias, prejudice and hatred which exists against Cook in the county; that a jury would be consciously or unconsciously aware of the general public sentiment against Cook and thus would be influenced by the atmosphere of prejudice.
The affidavit of Pierson, who operates a gasoline service station at Avon, was of the same general character as that of A. G. Cook.
The affidavit of defendant administrator was also of the same tenor as that of A. G. Cook except that it set out that the posse included not only the sheriff of Powell County but also the county coroner, several highway patrolmen, state fish and game employees, several deputy sheriffs, a number of private citizens and George Talbot, an attache of the Montana State Prison who owned and maintained trained bloodhounds which were used to locate the whereabouts of Wilbur C. Cook; that Cook received six or more fatal wounds from a volley of shots fired by members of the posse; that the Montana,Standard, a Butte daily newspaper, and the Silver State Post, a weekly published in that county wrote up the events which were widely circu[259]*259lated and read in all parts of the county; that in these articles it was assumed and stated that Cook had been guilty of murdering McGraff and Garren.
In opposition to the motion, plaintiff filed an affidavit of Maurice Coughlin, who resides at Helmville, being in the northern part of the county. He stated that he has read and heard about the case but knows of no prejudice or bias or fixed opinion on the part of “any appreciable number of residents” which would preclude Cook or his executor from having a fair and impartial trial in Powell County; that there is no general feeling of hostility or prejudice against Cook.
Likewise plaintiff filed an affidavit of J. 0. Gehrett, publisher of the Silver State Post, which contained the same matter as' the affidavit of Coughlin except that it recited in addition that the article published in his paper was but a factual account of the matters involved as given to him by the sheriff.
Vic Hendricksen, who resides in the south end of the county, made affidavit that he read of the death of McGrath and Garren; that the communication by newspaper, radio and word of mouth was no more than such an incident would normally bring as news coverage; that the executor “could have a fair and impartial trial in Powell County and that there is no feeling of bias, prejudice or hostility and hatred which exists” in the county and “that if a jury were selected to try the matters here involved they would not be influenced by any atmosphere of prejudice, since none exists in this county.”
Thelma Quasi made affidavit similar to that of Vie Hendricksen.
Don Valiton, an insurance agent and state senator who comes in contact with many people from all parts of the county, made affidavit similar to that of Vic Hendricksen except additionally he asserted that he had heard discussion about the incident and that the expressions and statements were not of a type to cause public feeling to be so inflamed as to prohibit a fair and impartial trial in Powell County; that based upon his conversa[260]*260tions with, people in the county he has found no evidence of an inflamed public opinion against Cook.
At the hearing on the motion, Ed Darrow, the sheriff, a witness for plaintiff, recounted the events leading up to the killing of Cook by members of the posse. In substance his testimony was: In addition to finding the bodies of McGraff and Garren they found a jeep station wagon had been burned near the place where the bodies were found; they also found two cartridge cases that had been burned from a 25-35 calibre gun which was the calibre of a gun owned by Cook; they spent the night at the place where the jeep had been burned and the next morning went to the home of Cook; they found him in the bam; he noticed a rifle barrel in the doorway and saw that it was lifted and raised up and then went back down again; he called to the person in the bam several times asking him to come out and toss his rifle out and that if he did so he would not be hurt; he told him he was the sheriff; thereafter, upon obtaining no response from the person in the barn he fired teargas shells into the bam; Cook then stepped outside and started firing and hit one member of the posse; he had instructed members of the posse when they first met not to do1 any shooting; he said that when Cook started shooting there was nothing else to do but to defend; members of the posse thereupon shot and killed Cook.
Newspaper articles of August 22 and 24 contained pictures and the names of the posse. Among other details they stated that ballistic tests of slugs taken from one of the possemen and from the body of one of the fishermen were fired in Cook’s rifle, and also empty cartridge cases found around the fishermen’s burned station wagon also were fired in Cook’s rifle.
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MR. JUSTICE ANGSTMAN:
This is an appeal by defendant from an order denying his motion for change of place of trial.
The action- was brought in Powell County, in behalf of the heirs of Melvin Earl McGraff, to recover damages for his wrongful death. The complaint alleges that defendant McGillvray is the executor-of the estate of Wilbur C. Cook, now deceased; that Wilbur C. Cook, on August 19, 1956, wilfully, unlawfully and wrongfully shot and killed. Melvin Earl McGraff with- a 25-35 Winchester rifle. This allegation was put in issue by the answer of defendant, and an affirmative defense was asserted to the .effect, that if Wilbur C. Cook killed Melvin McGraff it was done in self-defense. At the time of filing the answer, defendant filed a motion for change of venue in which it was alleged that defendant believes “an impartial trial cannot be had in the County of Powell.”
In support of the motion, defendant filed his own affidavit and the affidavit of Sandy O. Rierson and A. G. Cook, and asserted in the motion that it would be based also on such oral testimony as may be introduced at the hearing on the motion.
The affidavit of A. G. Cook set forth that he is not related to Wilbur C. Cook; that he lives in the vicinity of Avon; that ón the evening that Melvin Earl McGraff and another man named Homer B. Garren had been shot and killed while fishing in Nevada' Creek near the Wilbur 0. Cook ranch in Powell County, a posse was formed by the sheriff' of that county and a search was instituted for Wilbur C. Cook since “it was assumed that he had killed the two fishermen;” that Wilbur C. [258]*258Cook was shot and killed by the posse; that the killing of the three people was sensational news, furnishing a topic of conversation by word of mouth and a subject of radio broadcasting and newspaper publicity; that there was no investigation as to who killed the two fishermen until after the posse had shot and killed Wilbur C. Cook; that affiant has heard the matter discussed by residents of Powell County from all parts of the county and public feeling against Wilbur C. Cook was highly inflamed; that there exists a general feeling of hostility and prejudice against Wilbur C. Cook; that the newspaper and radio publicity all assumed that Cook was guilty of murder; that he has heard residents from all parts of the county express the opinion that Cook killed the two fishermen, Garren and McGraff, without cause or justification and that this is the fixed opinion in the county; that the executor of the Cook estate could not have a fair and impartial trial in Powell County by reason of the feeling of bias, prejudice and hatred which exists against Cook in the county; that a jury would be consciously or unconsciously aware of the general public sentiment against Cook and thus would be influenced by the atmosphere of prejudice.
The affidavit of Pierson, who operates a gasoline service station at Avon, was of the same general character as that of A. G. Cook.
The affidavit of defendant administrator was also of the same tenor as that of A. G. Cook except that it set out that the posse included not only the sheriff of Powell County but also the county coroner, several highway patrolmen, state fish and game employees, several deputy sheriffs, a number of private citizens and George Talbot, an attache of the Montana State Prison who owned and maintained trained bloodhounds which were used to locate the whereabouts of Wilbur C. Cook; that Cook received six or more fatal wounds from a volley of shots fired by members of the posse; that the Montana,Standard, a Butte daily newspaper, and the Silver State Post, a weekly published in that county wrote up the events which were widely circu[259]*259lated and read in all parts of the county; that in these articles it was assumed and stated that Cook had been guilty of murdering McGraff and Garren.
In opposition to the motion, plaintiff filed an affidavit of Maurice Coughlin, who resides at Helmville, being in the northern part of the county. He stated that he has read and heard about the case but knows of no prejudice or bias or fixed opinion on the part of “any appreciable number of residents” which would preclude Cook or his executor from having a fair and impartial trial in Powell County; that there is no general feeling of hostility or prejudice against Cook.
Likewise plaintiff filed an affidavit of J. 0. Gehrett, publisher of the Silver State Post, which contained the same matter as' the affidavit of Coughlin except that it recited in addition that the article published in his paper was but a factual account of the matters involved as given to him by the sheriff.
Vic Hendricksen, who resides in the south end of the county, made affidavit that he read of the death of McGrath and Garren; that the communication by newspaper, radio and word of mouth was no more than such an incident would normally bring as news coverage; that the executor “could have a fair and impartial trial in Powell County and that there is no feeling of bias, prejudice or hostility and hatred which exists” in the county and “that if a jury were selected to try the matters here involved they would not be influenced by any atmosphere of prejudice, since none exists in this county.”
Thelma Quasi made affidavit similar to that of Vie Hendricksen.
Don Valiton, an insurance agent and state senator who comes in contact with many people from all parts of the county, made affidavit similar to that of Vic Hendricksen except additionally he asserted that he had heard discussion about the incident and that the expressions and statements were not of a type to cause public feeling to be so inflamed as to prohibit a fair and impartial trial in Powell County; that based upon his conversa[260]*260tions with, people in the county he has found no evidence of an inflamed public opinion against Cook.
At the hearing on the motion, Ed Darrow, the sheriff, a witness for plaintiff, recounted the events leading up to the killing of Cook by members of the posse. In substance his testimony was: In addition to finding the bodies of McGraff and Garren they found a jeep station wagon had been burned near the place where the bodies were found; they also found two cartridge cases that had been burned from a 25-35 calibre gun which was the calibre of a gun owned by Cook; they spent the night at the place where the jeep had been burned and the next morning went to the home of Cook; they found him in the bam; he noticed a rifle barrel in the doorway and saw that it was lifted and raised up and then went back down again; he called to the person in the bam several times asking him to come out and toss his rifle out and that if he did so he would not be hurt; he told him he was the sheriff; thereafter, upon obtaining no response from the person in the barn he fired teargas shells into the bam; Cook then stepped outside and started firing and hit one member of the posse; he had instructed members of the posse when they first met not to do1 any shooting; he said that when Cook started shooting there was nothing else to do but to defend; members of the posse thereupon shot and killed Cook.
Newspaper articles of August 22 and 24 contained pictures and the names of the posse. Among other details they stated that ballistic tests of slugs taken from one of the possemen and from the body of one of the fishermen were fired in Cook’s rifle, and also empty cartridge cases found around the fishermen’s burned station wagon also were fired in Cook’s rifle.
The rule is well settled that the matter of granting or refusing a motion for change of venue rests in the sound discretion of the trial court and that its decision will be disturbed only when it appears that the court has abused its discretion. Torstenson v. Independent Publishing Co., 86 Mont. 163, 282 Pac. 861; Kennon v. Gilmer, 5 Mont. 257, 5 Pac. 847, 51 Am. [261]*261Rep. 45; State v. Lund, 93 Mont. 169, 18 Pac. (2d) 603; State v. Davis, 60 Mont. 426, 199 Pac. 421; Atkinson v. Bonners Ferry Lumber Co., 74 Mont. 393, 240 Pac. 823.
Here the evidence relating to the vital issue of whether a fair trial may be had in Powell County within the meaning of section 93-2906 was at best, from the standpoint of defendant, conflicting.
When this is so, there is ordinarily no basis for a finding that the trial court abused its discretion in denying the motion.
Counsel for defendant, while recognizing the foregoing as the general rule, assert that the facts here show conclusively that there was prejudice against Cook else he would not have been killed. Were we to accept the conclusion contended for by counsel for defendant so far as prejudice against Cook is concerned it would not help defendant here for we must, before we can reverse the trial court, find some justification for extending that prejudice to the defendant here, the executor of Cook’s estate. As to such prejudice the evidence is conflicting.
There is no showing of facts that extends the prejudice against Cook beyond the grave. So far as this record goes, those, if any, who hated Cook or were prejudiced against him had their hatred or prejudice satisfied when he was put to death. We would be indulging in surmise and speculation were we to conclude that the heirs, devisees or legatees of Mr. Cook could not have a fair trial because of the circumstances unfolded in the record. If there be any evidence that the executor cannot have a fair trial there is at least as much evidence the other way. The majority of this court think the trial court did not abuse its discretion in denying the motion.
The word “must” as. used in section 93-2906 does not solve the problem before us as suggested in the dissenting opinions. The duty devolved upon the court to determine whether a showing had been made to sustain the conclusion that “there is reason to believe that an impartial trial cannot be had” in the county where the action • is. pending before a change of [262]*262venue, must bé. granted. The cases of Merchants Credit Service, Inc. v. Chouteau County Bank, 112 Mont. 229, 114 Pac. (2d) 1074; State ex rel. O’Connor v. McCarthy, 86 Mont. 100, 108, 282 Pac. 1045; and State of California v. Superior Court of City and County of San Francisco, 14 Cal. App. (2d) 718, 58 Pac: (2d) 1322, relied on in the dissenting opinion of Mr. Justice Adair to sustain the meaning of the word “must” were cases dealing with a statute where plainly there, was m> discretion vested-in the court.. '..... . . .. '.
Such is not the effect of the statute we have before us here.
In- thé' dissenting opinions it is asserted in substance that 'Cook was-summarily tried, convicted and executed by the posse. The authors of those opinions erroneously assume that, the posse" adjudged Cook guilty and executed the sentence of guilty ■because he killed McGraff and Garren. Such are not the facts. Coolv- was. not found guilty or executed for having killed Mc-Graff and his fishing partner Garren. Had it had conclusively shown that he did kill these fishermen that would not have justified his killing at the hands of the posse. ' That is not the reasom why Cook was shot by the posse.’ He was shot, according to;the record before us, because instead of submitting to arrest he came out'of the bam spraying bullets at the posse and after actually .striking one of them with one of the bullets and this after being assured that he would not be harmed if he came out of the bam unarmed. This showing stands uneontradieted in the record.
Likewise in the dissenting opinion of Mr, Justice Adair it is erroneously assumed that the jury which will be chosen to try the case is to be drawn from the posse. The posse consisted of fifteen men. There were 3,529 registered voters in Powell County for the election of 1958. The district judge was justified in concluding that out of these 3,500 voters an impartial jury could be selected.
The dissenting opinion of Mr. Justice Bottomly seems to belittle the opposing affidavits filed by plaintiff. We shall not prolong this opinion by setting them out in full. It is sufficient [263]*263to say that they are just as positive that defendant can have a fair trial in Powell County as his affidavits are that he cannot.
On this conflict, we cannot say that the trial court abused its discretion in denying the motion for change of venue. To do so we would be obliged to judicially determine from conflicting affidavits that a fair jury cannot be obtained from the more than three thousand voters in Powell County, and this after the lapse of about two years and six months from the time to which the affidavits relate.
Where reasonable minds might reach different conclusions, we prefer to grant such motions rather than take a chance of depriving a party of a fair trial.
Since two members of the court think the motion should have been granted and since every member of the court is desirous of assuring defendant a fair trial we have concluded to permit defendant to renew his motion if it develop that a fair and impartial jury cannot be obtained.
This is not an unheard of practice. It was done in Buck v. Reighard, Ohio Com. Pl. 1949, 85 N.E. (2d) 302, and we recognized the principle by allowing the motion to be renewed when we granted a new trial on other grounds in State v. Searle, 125 Mont. 467, 239 Pac. (2d) 995.
The order appealed from is affirmed.
MR. JUSTICE CASTLES, and THE HONORABLE GUY C. DERRY, District Judge, sitting in place of MR. CHIEF JUSTICE HARRISON, concur.