140 Ga. 138 | Ga. | 1913
Nick Wilburn, under indictment for the offense of murder, which crime was alleged to have been committed in the county of Jones, presented a petition to the judge of the superior court of that county, alleging that at the -time of presenting the petition he was detained in the jail of an adjoining county, and that if he should be carried back to Jones county there was danger of his being visited with mob violence and of his being lynched, and
1. ‘The.firstyquestion that arises in this case is whether this court has jurisdiction to entertain the writ of error bringing the refusal of the lower court to grant a change of venue here for review. If the petition addressed to the judge of the court below and the resistance by the State of the motion contained in that petition constituted a criminal case, then this court is without jurisdiction to review the ruling of* the judge on appeal. For, by article 6, section 2, paragraph 5, of the constitution of this State (Civil Code, § 6502), it is declared, in reference to criminal cases, that the Supreme Court shall be a court for the correction of errors “in all cases of conviction of capital felony.” And so far as relates to criminal cases this court has no jurisdiction except that which arises in cases where there has been a conviction of a capital felony. There has been no trial or conviction in the ease of the State against this plaintiff in error; and if his petition for a change of venue and the issue joined upon that and the evidence heard upon that issue made a criminal case, this court is clearly without jurisdiction to review the judgment rendered by the court below, disposing of the motion of the petitioner for a change of venue. But after a careful consideration of the question, we are of the opinion that the presentation of -a petition for a change of venue and the hearing thereon by the judge below is not necessarily to be classed as a criminal case. A criminal case is essentially one in which is involved an alleged injury done to the State by the violation of some law for the punishment of which the offender is prosecuted by the State in order that punishment for the offense may be meted out to said person after conviction. Grimball v. Boss, T. U. P. Charlton, 175; Ames v. Kansas, 111 U. S. 449 (4 Sup. Ct. 437, 28 L. ed. 482); and cases cited in 2 Words and Phrases Judicially Defined,
2. While the act of the legislature referred to above, relative to the change of venue, has enlarged the class of cases in which it is proper for the judge to grant a change of venue, and it is provided that if the evidence submitted shall 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,” we are of the opinion that where the evidence is conflicting upon the issue as to whether or not under the petition such a case is made as requires the judge to grant the motion, the judge hearing the same passes upon the issues that are to be determined upon evidence, and that his finding and judgment upon the same is final and controlling, unless manifestly erroneous. In the present case the evidence was conflicting upon the material issues, and it can not be said that it was manifestly erroneous to refuse to grant a change of venue.
3. It requires no argument to demonstrate that it was proper for the court to exclude from the evidence a letter which was addressed, not to the accused, but to a third person, threatening the addressee of the letter with violence in case he should furnish money for the purpose of assisting the accused in making his defense, no evidence being offered to show the authorship of the letter.
Judgment affirmed.