Ross v. Kalin

MYERS, J., pro tem.

This is an appeal by plaintiff from an order denying his motion for a change of place of trial on the ground that he could not have an impartial trial in Imperial County. The motion was made after answer filed, and submitted upon the pleadings and upon affidavits in behalf of both parties.

Appellant’s contention is that the order should be reversed because the -allegations of specific facts in the affidavits submitted in support of the motion, upon which the ultimate conclusion of the impossibility of securing an impartial trial is predicated, are not controverted, and therefore the trial court should have given no weight to the counter-affidavits which, in the main, stated merely the conclusion of the affiant that no prejudice existed which would interfere with an impartial trial.

From the voluminous affidavits in the record we cull the following allegations of fact which are substantially uncontroverted : Prior to the assault hereinafter referred to, plaintiff, by his exceptional activity in a crusade against vice conditions in the city of Brawley and other portions of the county, had incurred the enmity and hatred of “a large number of people,” some of whom were socially and politically prominent and influential throughout the county. On October 3, 1918, plaintiff was assaulted by a mob, “consisting of a large number of persons,” beaten, tarred and feathered, and chained to a tree in a public place in Brawley. There was a Liberty Loan drive in progress at this time, and plaintiff was charged with being disloyal and pro-German. He was then arrested and tried on a criminal charge of uttering threats to do great bodily injury, and fined and imprisoned. On October 3d, and again on October 18th, the “Brawley News” published editorials approving the mob action. One of the sureties on plaintiff’s appeal bond was assaulted, beaten, and threatened with further injury if he would not withdraw therefrom. The other surety received similar threats,

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and both were threatened with a boycott. One of the sureties on a bond given by plaintiff in a civil action was threatened, and several persons refused to do business with him because of his connection with plaintiff. The attorney who acted for plaintiff was, because thereof, assaulted, beaten, boycotted, and expelled from two fraternal organizations. The plaintiff now has pending three actions for damages, because of the assault, the imprisonment, and the newspaper publications. The defendants in these actions aggregate about thirty in number, many of them men of large wealth, and all of them men of prominence and influence in the community. Said defendants, their friends and associates, have constantly, since the date of the assault, circulated false and scandalous statements concerning the plaintiff for the purpose of prejudicing the minds of the people against him so that he could not obtain a fair trial.