55 S.E.2d 877 | Ga. Ct. App. | 1949
1. Where, as here, upon the hearing of a motion to change the venue, the evidence greatly preponderates that an impartial jury can be obtained to try the case, it is not an abuse of discretion by the trial court to deny a motion based upon this ground.
2. Upon the hearing of a motion to change the venue upon the ground *269
that there is probability of violence being done the accused, if the evidence submitted reasonably shows that there is probability of such violence, then it is mandatory upon the judge to change the venue to some county where, in his judgment, the accused can be safely tried. Butler v. State,
1. The evidence for the State consists of the testimony of numerous citizens of the county, including the sheriff, the mayor, a member of the grand jury which had indicted Pinkston, a jury reviser, the chairman of the board of county commissioners, and other citizens and residents. These all stated that in their opinion there was no feeling in the county which would lead them to believe that the defendant would not receive a fair trial.
Code § 27-1201, relating to change of venue, provides in part: "if . . the court shall be satisfied that an impartial jury cannot be obtained to try the case, the judge shall transfer it to any county that may be agreed upon."
In the present case there was ample evidence, through the statements and opinions of many of the leading citizens of the county, that an impartial jury could be obtained, and it was therefore no abuse of the court's discretion to refuse a change of venue upon this ground.
2. The evidence for the defendant is embodied in his sworn petition, which was introduced in evidence, and this court will consider this evidence in connection with the records of two previous cases (Pinkston v. State,
"Said J. L. Reese is a violent and dangerous person and will likely do this defendant harm if he is acquitted in Glascock County, said Reese several months prior hereto, in Warren County, set fire to and burned down barn of Misses Beulah and Lena Norris, also burning barn of Arthur Reese and setting fire to dwelling house of Charlie Lee Norris and so far the State has been unable to get said J. L. Reese to trial for said arson offenses." This evidence also was not controverted by any other evidence. *271
Code § 27-1201, supra, further provides in part 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 as, in his judgment, will avoid such lynching."
What degree of evidence would be sufficient to establish a danger of violence to the accused is a question of such difficulty, and which must necessarily vary so greatly with the circumstances of each case, that it would be impossible to define its limits with exactitude. The danger may be obvious in some cases, and latent in others. It may be more threatening because it is unannounced.
There is undisputed evidence here that the defendant's habitation was at least once threatened by a group of armed men, and this court cannot say that the evidence introduced before the trial court obviated the probability that it would be repeated. Where there is so much doubt as to the threat of future armed violence, the welfare of the State, as well as that of the citizens of the county in which the alleged crime was committed, demands, no less than the welfare of the individual defendant, that such doubt should be removed. This can only be accomplished by a change of venue, by which the State's case is in no way prejudiced and the society of this State as a whole in no way suffers. It is the province and duty of the courts, not only to punish lawlessness, but, insofar as possible, to guard against it, and a reasonable doubt as to the safety of the defendant, in the event of acquittal, should be resolved in his favor for the welfare of society as a whole, by laying the venue in a county disassociated from the turbulence and rancor of the disturbances.
In Butler v. State,
The evidence here shows a probability or danger of violence to the accused, and the trial court erred in denying the motion for change of venue.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.