8 S.E.2d 797 | Ga. Ct. App. | 1940
1. The court did not commit reversible error in overruling the defendant's "special plea in abatement and motion to strike said indictment."
2. The court did not commit reversible error in overruling the defendant's petition for a change of venue, and in effect saying that under the evidence *499 in this case the prisoner, in the selection of a fair and impartial jury, was protected by his right to peremptory challenges, and to have the statutory voir dire questions propounded; and if these were not sufficient, the prisoner had his right of challenge to the poll, and to have any juror called to try him put upon the court as a trior, and the question of such juror's competency and impartiality thoroughly tested.
1. The bill of exceptions recites that "the court, after hearing said special plea in abatement and motion to strike said indictment, passed an order on said date overruling the same." The only evidence on behalf of the defendant which is recited in the record is that "defendant offered in evidence his sworn plea as evidence for himself on petition for change of venue." Hence we find no evidence in the record to support the plea in abatement which was on the ground of bias of several named grand jurors, nor is it alleged that the defendant had no opportunity to challenge the grand jurors before the indictment was found. It should be noted that a grand juror stands upon a different plane from a petty or traverse juror in respect to a cause of challenge. In Georgia, in the superior court, the grand juror, together with his fellow grand jurors, prefers upon his oath a written charge of crime, in the form called an indictment, against the accused; whereas, since the establishment of city courts in this State, the law allows a written accusation which may be preferred against the accused, in the city court, upon the oath or affidavit of the prosecutor alone, who may or may not be the person injured or aggrieved. "It is a matter of comparatively little importance that grand jurors should not have formed opinions, because they only put the party on trial, *500
and that after hearing only one side of the case. If, however, it is deemed important in a particular case to fight the prosecution in limine, diligence requires that the challenge be made before the bill is found." Williams v. State,
2. When the case was called for trial, and before the prisoner was arraigned, and after the judge had overruled the motion to strike and the plea in abatement, the defendant filed a petition for a change of venue. This was based on the grounds that a minister of the gospel, aided by a committee of deacons of his unincorporated church in Twiggs County, headed a movement or crusade against what are ordinarily termed "road-houses," the members of the church being 800 to 1000 in number, all of whom were parties principal in the crusade; that a large percentage of the jurors impaneled at this term of the court, both grand and petty jurors, were members of this church; that any member of this church would not stand impartially between the State and the accused; that many petitions had been circulated freely and frequently over the county, seeking the doing away with and putting out of commission and *501 destroying the roadhouse business of the defendant and of other defendants who ran roadhouses in said county, and the authors of such petitions could be on the jury in said court; that as a result of said crusade, the petitions had been published in the official organ of said county, and numerous articles against the business of the defendant had been published and circulated in said county, and that the defendant and his family and his business had been, through said campaign and crusade, held up to public contempt; and that it was impossible for him to obtain a fair and impartial trial in Twiggs County, "for all of the aforementioned facts; and that he is in fear of mob violence."
The defendant introduced his petition or motion, but introduced no other evidence to establish his conclusion that he could not obtain a fair trial in the county, or that there was probable danger of lynching or other violence. The State introduced the chairman of the board of county commissioners of the county, who testified: "I know these people, and I am familiar with the charges against them. I know the jurors generally in Twiggs County. I see no reason why the defendants could not obtain a fair and impartial trial in this county." The representative in the legislature from Twiggs County testified: "I know the defendants named. I see no reason why they could not get a fair and impartial trial in Twiggs County. No, sir, I do not believe they are in danger of mob violence." We do not think the judge committed reversible error in refusing to order a change of venue. In so ruling he in effect said that he found under the evidence that the prisoner, in the selection of a fair and impartial jury (traverse or petty jury), was protected by his right to peremptory challenges, and to have the statutory voir dire questions propounded; and if these were not sufficient, the prisoner had his right of challenge to the poll, and to have any juror called to try him put upon the court as a trior, and the question of such juror's competency and impartiality thoroughly tested. Biggers v. State,
Judgment affirmed. Broyles, C. J., and Guerry, J., concur. *502