Opinion of the Court-Steele, District Judge.

tioned, it is the opinion of the affiant that the Washington Water Power Company could not have a fair trial in Kootenai county.

The affidavit of Charles L. Heitman, also an attorney for the Washington Water Power Company, is filed in support of the application for a change of venue, and is very similar to that of attorney Knight to which attention has been heretofore called.

In opposition to the motion, the affidavit of one of the plaintiffs, Henry Gibbert, is filed, in which he says, in substance, that his land has been overflowed; that the defendant, the Washington Water Power Company, has refused to pay him any damages, and endeavored to prolong the litigation and postpone the trial of the cause; that the land is situated on Coeur d'Alene lake within less than two miles of Coeur d'Alene City; that all of the plaintiff's witnesses reside in the immediate vicinity of Coeur d'Alene; that he is a man without means, and that a change of the place of trial would involve great and additional expense in procuring witnesses, and getting his witnesses to go to another county, which he is unable to bear, and that he could not take all of his witnesses to another county. He alleges that there is no such feeling in Kootenai county as would prevent the defendant having a fair trial; that he has observed the publications in the newspapers, and especially the Spokane papers, in regard to the hearing being held and the testimony submitted at Coeur d'Alene, Idaho, and that in the opinion of affiant said newspapers printed and published the defendant's side of the case, and the testimony submitted upon the part of the defendant, in a fair, impartial manner, as well as the testimony submitted adverse to the defendant in said action, and states that he is informed and believes that all of the parties who have submitted affidavits in support of the defendant's motion for a change of venue are either attorneys for the defendant, or in some way connected with the defendant company, either as an officer of the company or otherwise; and in the opinion of said affiant, the defendant can have a fair and impartial trial in Kootenai county.

Opinion of the Court-Steele, District Judge.

The affidavit of Robert W. Collins, filed in opposition to the motion, states in substance that he is a resident of Kootenai county, and has been for eight years last past, and is well acquainted with the people of the county and the taxpayers thereof, and those who would serve as jurors; that from the knowledge and information of the affiant, it is his opinion that the defendant can have a fair and impartial trial in the case, if the same is tried in Kootenai county, and that there is not a prejudice against the defendant in said county existing to such an extent as will prevent the defendant from having a fair and impartial trial in Kootenai county.

The affidavit of J. M. Elder, filed in opposition to the motion, states that he is a resident of Kootenai county, and has been for more than seven years; that he is postmaster at the city of Coeur d'Alene, and has been such for more than two years; that he is well acquainted with the city and the county and the taxpayers, and those who would serve as jurors; that in his opinion the defendant can have a fair trial.

The affidavit of John F. Steele, filed in opposition to the motion, shows that he has been a resident of Kootenai county for fifteen years, and is acquainted with those who would serve as jurors in said county; that from the knowledge and information that the affiant has, the defendant can, and will, have a fair and impartial trial in Kootenai county.

The affidavit of Horace H. Hubbard, filed in opposition to the motion, states in substance that he is a resident of Kootenai county, and has been for more than five years; that in his opinion there is not a prejudice against the defendant in said county existing to such an extent as will prevent the defendant from having a fair and impartial trial.

The affidavit of E. A. McCarty states that he has been a resident of Kootenai county for nineteen years, and, in other respects, is similar to that of the affiants, Hubbard and Steele.

An application for a change of venue is addressed to the sound discretion of the trial court, and the decision reached by the trial court will not be reversed upon appeal unless the showing made is such as convinces the appellate court that such discretion has been abused. A trial judge may be pre

Opinion of the Court-Steele, District Judge.

sumed to be reasonably well acquainted with the sentiment of the citizens of the counties in his district, and weight should be given to the expression of the trial judge upon such a question.

In the matter in question the motion for a change of venue was overruled by the trial court upon the same affidavits that are now before this court. It will be noticed that the chief reliance of the defendant for a change of venue is based upon the fact that four or five newspapers, at least two of which were published in the city of Spokane, state of Washington, published numerous articles as news items, which, it is claimed, either directly or indirectly criticised the action of the Washington Water Power Company, or so stated the facts as to create a prejudice among the citizens of Kootenai county to such an extent that a fair and impartial jury could not be had in said Kootenai county to hear and determine the

cause.

The growth and improvement of the facilities for delivering mail, and the great desire of the public for information and enlightenment, which is always increasing, has within the past decade, been marvelous, and at this time there are but few communities where there is any centralization of the people, which the daily papers fail to reach. The rural mail delivery system, and other improvements in the delivery of the mail, have brought about such conditions as make it possible for persons who live in rural communities to be in daily intercourse with what is going on at other places.

The principal affidavit in this case, giving the details and copies of the articles published in the different papers, was made by Bleeker, who is secretary of the Washington Water Power Company, and his opinion is based almost entirely upon the fact of the publication of such articles and statements made in public utterances by public speakers. Three other affidavits were made by three of the attorneys for the defendants, and these three attorneys base their opinion upon the publication of such articles, and also upon their acquaintance throughout Kootenai county. The other two affidavits filed in support of the motion are based almost wholly upon said pub

Opinion of the Court-Steele, District Judge.

lications and also their acquaintance with the citizens of Kootenai county.

A citizen is not disqualified from sitting as a juror merely because he has read articles published in the newspapers, detailing what purports to be the facts in the case; and the opinion of the juror as to the merits of the cause, based solely upon what has been read in the newspapers, published as matter of news, should rarely, if ever, be accepted by the court as a sufficiently unqualified opinion to disqualify the juror. In this age every person of intelligence reads the newspaper to a greater or less extent, and to adopt a rule disqualifying men to serve as jurors who have formed some kind of an impression or opinion from reading articles published in the public press would be, in effect, relegating intelligent jurors to the background, and would result in the selection of a less intelligent and a less efficient jury. In determining a question for a change of venue, where the affidavits in support of a motion are based merely upon the fact that such articles were published, the court must keep in view what the law requires as grounds to disqualify a person from sitting as a juror. (See sec. 4380, Rev. Codes.)

It may be that every citizen in Kootenai county has read the articles published in these different newspapers, and yet that none of them, on account of the mere reading of such articles, would be disqualified from sitting as a fair and impartial juror in the trial of the cause. The place where the juror resides, whether he has ever talked it over with his neighbors or with his family, and whether he has ever expressed his views about it, all have to be considered; and while it might require greater care upon the part of the trial judge, and upon the part of counsel in the case to obtain a jury of fair minds to try the case, when such publications have been made, yet the fact that such articles were published and were read by a juror would not, of itself, necessarily disqualify the juror.

This application for a change of venue lacks strength in that the expression of individual citizens throughout Kootenai

Opinion of the Court-Steele, District Judge.

county, by affidavit, that in their opinion the defendant could not obtain a fair trial, is absent. No showing is made by anyone who either claims to have been over the county generally, or who claims to have heard the citizens of the county generally express themselves in regard to the matter at issue. The only positive expressions of sentiment shown by the appellants come only from either politicians or interested parties, none of whom would be qualified to act as jurors in this case, even though they had expressed no views or opinions on the matter. It is usual in such cases to give the court the opinions of intelligent citizens, subject to be called as jurors, scattered throughout the county, based upon a proper statement of facts, showing that a party cannot likely have a fair trial in the judgment of such citizens.

This court, in the case of State v. Rooke, 10 Ida. 388, 79 Pac. 82, stated as follows:

"An application for change of venue will be denied when it is based on the ground of the bias and prejudice of the people of the county, where it is shown that an equal number of the citizens testify that in their opinion a fair and impartial trial can be had in the county."

In that case it was shown that the defendant was arrested for the stealing of livestock, and there was an organization existing in the county known as the Idaho County Stock Association, which had over 300 members, and that the association had offered a reward of $300 for the arrest and conviction of anyone charged with the crime of stealing livestock; that the total number of votes cast in the county was about 4,500, and that, therefore, the members of the association constituted one-fifteenth of the total number of electors of the county, and the court used the following language:

"On the other hand, an equal number, and, so far as we are informed, equally as good citizens, testify that in their opinion there is no necessity for the change, and that from their conversation and acquaintance with the people of that county, the defendant can have a fair and impartial trial. All this evidence, as well as many facts that we apprehend are