33 Ga. App. 825 | Ga. Ct. App. | 1925
1. Where a motion for a change of venue is made, the motion, though sworn to, is not evidence upon the trial of the issues made by the motion, unless it is formally introduced in evidence.
2'. “ ‘Where an application is made by one accused of crime, for a change of venue on the ground that an impartial jury can not lie obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where after hearing evidence the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to change the venue, unless it is made to appear that there has been an abuse of discretion.’ Coleman v. State, 141 Ga. 737 (2 S. E. 227); Best v. State, 26 Ga. App. 671 (1) (107 S. E. 266).” Wilson v. State, 28 Ga. App. 574 (112 S. E. 295).
3. “ ‘While it is mandatory upon the judge to whom a petition for.a change of venue is presented in behalf of a defendant in a criminal case, under the, act approved August 21, 1911 (Acts of 1911, p. 76), to change the venue if the evidence submitted should reasonably show that there is a “probability or danger of lynching or other violence,” it is primarily a question for the judge upon the hearing of such petition to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous. Where evidence fails to reasonably show the probability or danger of lynching or other, violence, it is not error on the part of the judge to refuse to change
4. The rulings quoted in paragraphs 2 and 3 above are firmly established as the law of this State, the former applicable where the motion to change the venue is based on the ground that an impartial jury can not be obtained, and the latter where the motion is based on the probability or danger of lynching or other violence; and both are applicable to the ease we are now considering. In the instant case the accused was indicted in Johnson county for murder, and moved for a change of venue on the grounds that he could not obtain an impartial jury in that county, and that there was “danger of violence being attempted to be committed on this movant if he is required to remain in the county of Johnson or to be tried in said county.” Upon the hearing of the motion the undisputed evidence showed that there was no danger of any violence being attempted upon the movant. As to the other ground of the motion, while there was some conflict in the evidence presented, the preponderance thereof was to the effect that the movant could obtain a fair and impartial trial in Johnson county. Fifteen witnesses for the State unqualifiedly so testified. Indeed some of the six witnesses for the movant testified that in their opinion such a jury could be obtained. It follows that the trial judge did not err in denying the motion. In addition to authorities cited above, see Coggeshall v. State, 33 Ga. App. 613 (126 S. E. 568).
Judgment affirmed.