83 Ga. App. 700 | Ga. Ct. App. | 1951
James Avery was indicted by the grand jury of Walker County for the offense of rape. He filed a petition for a change of venue in which he alleged that he is a negro and that he is charged with the offense of rape upon a white woman; that the alleged offense is supposed to have oc
There was evidence by witnesses to the effect that, based upon the discussions they had heard and other things within their knowledge, there was a probability or danger of lynching or other violence being committed upon the accused if he were carried back to Walker County for trial. There was evidence to the contrary by witnesses who testified that in their opinions the accused could be carried bkck and safely tried in Walker County. If there had been only this contradictory opinion evidence, the judge of the Superior Court of Walker County would have been authorized to decide the issue for or against the motion for a change of venue, but the sheriff of Walker County, whose responsibility it was to protect the accused, testified: “I am sheriff of Walker County. On the night of October 29, 1950, there was turned over to me for safekeeping a colored man, named James Avery. As to what time this man was turned over to me as sheriff; well, I don’t know just exactly what time, but it was between, I believe 9:30 or 10, something like that, could have been a little later, I didn’t look at my watch. George Arnold and Mr. Potter, of Chickamauga, turned this man over to me. They were the only two with him when they brought him to me. I lodged James Avery in the Walker County jail, at LaFayette, in Walker County, Georgia. Yes, during that night someone called at the jail; after we locked him up George and Mr. Potter came in the kitchen, and we stood there and talked a few minutes and they went on out the door, and I had the lights off in the kitchen, as soon as they went out the door I turned the last light off, and I got me a glass of milk, and they had been gone, I guess, probably ten minutes, and this car came in from around this way. . . The car stopped right under that street light by the jail there. It was
George Arnold testified: “I am a city policeman over at Chickamauga, and am also a deputy sheriff. I am the one that arrested James Aveiy on the night it is alleged he committed the offense of rape upon a Mrs. Hollingsworth. My duties as city policeman causes me to come in contact with quite a few of the citizens over at Chickamauga in all walks of life. . . As to whether or not I have heard considerable discussion of this case since the night I made the arrest of James Avery; well, I have heard some, quite a bit. I have not heard any suggestion that there might be such a. thing as a lynching of James Avery. Based on all the discussions that I have heard or anything else that I might know about it, I think that James Avery could be tried here in this county without danger or violence being committed upon him. . . Yes, I work during the day, and I see the citizens throughout the day and a good bit of the citizens stop and talk with the policeman, and the policeman gets a pretty good cross view of what folks are thinking about in public matters. Yes, I am interested in administering justice in’ accordance with the rules of the books. In any of those conversations, as to whether or not anybody has said to me that that negro ought to be lynched; well, I might have heard that in ways, you know, you will hear talk like that, first one and the other talking around, some will make that remark. I didn’t hear that remark from the representative group of citizens, the business people and intelligent, good people in the community such as down here today. As to what element of the population I did hear that remark from; well, it might have been just some casual remark made that you would hear most anywhere in cases like that, someone would make the remark, he ought to be took out and lynched or he ought to be hanged, something like that. From the element that would make a remark like that in a community, or would be a party to such a terrible thing, I ■wouldn’t say there was any sizable amount of influence in that direction. No one came to me that night and asked me to notify or request them to sound the siren there in the fire department. I hadn’t heard that before until today. Outside of the few scattered remarks that I have heard to the effect that he
By the act of 1911 (Ga. L., 1911, p. 74), amending the act of 1895 (Ga. L., 1895, p. 70), as codified in Section 964 of Volume 2 of the Code of 1910, shows that the legislature was unwilling to leave the law as to change of venue in criminal cases, as it stood before this amendment, to the general determination of the judge as to whether a fair and impartial trial could be obtained, but passed this additional act to the effect that “if the evidence submitted shall reasonably show that there is probability or danger of lynching, or other violence, then it shall be mandatory on said judge to change the venue to such county in the State, as in his judgment, will avoid such lynching.” (See this act as codified in the Code, §27-1201.) This amendment did not merely confer upon the judge a power or discretionary right but. placed upon him a solemn and mandatory duty. The reading of this amendment will show the imperative nature of the duty placed upon the judge of the superior court if the evidence reasonably shows that there is a probability or danger of lynching or other violence. Kennedy v. State, 141
Conceding that the witnesses were of different opinions as to whether the accused would probably (not necessarily) be in danger of physical violence, we have the undisputed facts that after the accused had been placed in the Walker County jail by the sheriff and two policemen, and after the two policemen had left the jail and the sheriff had turned out the lights, four men, ten or fifteen minutes later, drove boldly under a street light in front of the jail; one of them got out of the car in which they were riding, leaving the other three in the car with the engine still running, and went to the side door of the jail and opened the screen door, and when the sheriff, who had remained inside the jail, opened the inner door and confronted this man, he fled back to the waiting automobile and then all four of the men fled in the car with the sheriff in pursuit of them. There was no other negro in the jail at that time and it does not appear that there was any other prisoner in the jail whose alleged crime would arouse public excitement and ire. The policeman, Arnold, a witness for the State, testified in effect that it had been said to him that the negro (the accused) ought to be lynched but that he did not hear such remarks from “the representative group of citizens, the business people and intelligent, good people in the community such as down here today [attending the trial],” which, of course, included the witnesses for the State who apparently belonged to this class. Mr. Arnold testified also that the “element of the population” he heard make such remarks as to lynching or hanging the accused, he would say, did not have “any sizable amount of influence in that direction.” Outside of a few scattered remarks that he had heard that the accused ought to be lynched or hanged, he had not heard of any sizable amount of aroused public sentiment to do tfie negro violence.
It seems to us that the gist of the sheriff’s testimony was that there was a reasonáble probability, from what he saw and heard, that the persons in the car which came to the jail came for the accused to do him violence. Just what other reasonable prob
Though the accused might not be in danger from "the representative group of citizens, the business people and intelligent, good people of the community” such as were attending the trial of the question of the change of venue, yet there had been remarks from another group of uninfluential citizens that the accused ought to be lynched, and although we concede that the accused was in no danger from “the representative ■ group of citizens, the business people and intelligent, good people of the community”, and that these representative citizens testified that they had not heard remarks that the accused ought to be lynched and were of the opinion that he could be safely tried in Walker County, yet, we have the undisputed and undenied facts of what transpired at the jail within ten or fifteen minutes after the accused was arrested and placed therein, and the fact that the defendant had been transferred immediately beyond the limits of the county for safekeeping, and had not been brought back at the time of the hearing of the motion for a change of venue. The evidence for the State was negative and uncertain, while some of the evidence for the accused, which was material, was absolute and positive.
Considered as a whole,. we think that the evidence required a change of venue. We do not hold that a fair and impartial jury could not be obtained in' Walker County, but we do hold that from the facts and circumstances as shown by the evidence there was and is a probability and danger of violence being done 'the accused if he is brought back to Walker County for trial, and for this reason we reverse the judgment of the trial court refusing to grant a change of venue. Mitchell v. State, 55 Ga. App. 842, 847 (191 S. E. 500); Geer v. State, supra; Graham v. State, 141 Ga. 812, 819 (82 S. E. 282).
Judgment reversed.