145 Ga. 416 | Ga. | 1916
Lead Opinion
This is a motion lor change of venue under the act of 1911. From the petition it appears: At the spring term, 1915, of the superior court of Crisp county, Honor Bivins was indicted and tried on the charge of being accessory before the fact to murder. There was a verdict of guilty; he was refused a new trial, and on a bill of exceptions to this court, assigning error upon such refusal, the judgment of the trial court was reversed. It appears that T. E. Gleaton, the person alleged to have been murdered was, at the time he was killed, treasurer of Crisp county and a citizen of much prominence.
The evidence submitted on the hearing of the motion for change of venue very strongly tended to establish the fact that during the trial of the accused (about a year prior to the hearing of the motion) there was imminent danger that he would be lynched; indeed, it seems that this fact was not seriously controverted by the State on the hearing under review. Two members of the bar of Crisp county, who were in no wise connected with the case, joined in an affidavit put in evidence in behalf of the movant, from which we quote as follows: “During the progress of the trial the court-room was crowded to an unusual degree, and to its full capacity, by persons from all parts of the county, and that
The State put in evidence the testimony of a number of witnesses, some given orally and some by affidavits, including several members of the board of county commissioners, and a son of the decedent. The son testified, in part, as follows: “In the event this defendant should be brought back here for trial before this court, I don’t see why he shouldn’t he tried by this court, in an orderly manner, without- interference and without violence. I have heard nothing to indicate to the contrary. It is the disposition of our family, and of myself as the immediate representative of my deceased father, to see that he does get a fair trial, without interference. I have hoard no expressions from any source from which I might conclude that there would be personal violence of
The judgment rendered was as follows: “Upon consideration of above motion for change of venue, and of the evidence submitted by movant and the State, the motion is denied and refused. While, under the evidence, a sharp opinion of fact is raised, I feel that the officials of Crisp county can give movant ample protection against any attempt to do him violence, even if any should be attempted.”
The act of 1911 (Acts 1911, p. 74, Park’s Penal Code, § 964) provides: “It shall be lawful for the judge of the superior court of the circuit in which a crime is alleged to have been committed to change the venue for the trial of said case, on his own motion, with or without petition, whenever, in his judgment, the accused party will be lynched, or there is danger of violence being attempted to be committed on said accused, if carried back, or allowed to remain in the county where the crime is alleged to have been committed. And if a motion by petition shall be made by the accused for a change of venue, said judge shall hear the same at chambers, with or without the presence of the accused, 'at such time and place in the State as he may direct. And 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.” Obviously, under the evidence submitted upon the hearing of the motion for a change of venue, there existed, at the spring term, 1915, of the court when the movant was tried, a strong probability or danger of the movant being lynched or of personal violence being done him in the event of his being found not guilty. The question fór de
Another thing to be considered is the form of the judgment, which stated, in effect, that the evidence raised a sharp opinion of fact, -and that the judge felt that the officials of the county could give movant ample protection against any attempt to do him violence, even if any should be attempted. The question presented to the judge for decision on the hearing of the motion was not whether the officials of the county could give movant ample protection if there should be an attempt to do him violence, but the question was, as already stated, whether the evidence submitted reasonably showed that there was probability or danger of the movant being lynched or other violence done him if he should be returned to the county .for trial. The judgment appears to have been founded upon the fact that the judge felt that the officials of the county could give movant ample protection against any attempt to do him violence, even if any should be attempted. This, in our opinion, was not a sound basis on which to found the judgment overruling the motion. It might be true that the judge was right in his opinion that the officers of the county could give movant ample protection against any attempted violence of his person, and also true that there existed a probability or danger of personal violence to him.
In view of what has been said, the judgment refusing a change of venue must be
Reversed.
Concurrence Opinion
concurring specially. We concur in the judgment, though not in all that is said in the opinion, We think the evidence required the grant of change of venue. We