The court did not err in overruling the motion for change of venue.

DECIDED JANUARY 11, 1944. The defendant was indicated for assault with intent to murder. The transaction grew out of an incident wherein the defendant, as marshal of the Town of Hartwell, was arresting the prosecutor on the eve of an election for sheriff in Hart County. It is alleged that several hundred people had gathered for the purpose of receiving returns. Political partisans of the candidates became engaged in a brawl, whereupon the marshal sought to arrest the prosecutor, who resisted. It is alleged that certain persons in the crowd became incensed at the marshal, and made threats against him. It does not appear that any attack was made on him on that occasion. The next day the mayor of Hartwell advised the marshal that it would be better for him to leave town because of the sentiment *Page 503 which had developed against him by reason of the arrest and his conduct in connection therewith. He did leave town, as suggested by the mayor, and while away the officials of the town discharged him without a hearing. When the case was called for trial, the defendant made a motion for change of venue on the following rounds, to wit, (a) that he could not get a fair and impartial trial, and (b) that he was in fear of and in danger of violence being done to him. These were denied by the State. The allegations of the petition, and the supporting evidence were in the main of a general nature. The State submitted evidence of a similar kind in rebuttal. The motion was overruled. The defendant assigned error on that judgment, and brought the case here for review. It has been many times held that on the trial of a motion for change of venue the judge becomes the trior of the issue to be determined by the evidence introduced, and that his finding thereon will not be disturbed unless his discretion in passing upon the issue, under the evidence, is abused. InGriffin v. State, 59 Ga. App. 333 (1 S.E.2d 41), this court, after citing approvingly Broxton v. State, 24 Ga. App. 31 (99 S.E. 635), and Goumas v. State, 44 Ga. App. 210 (160 S.E. 682), said: "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."

It is contended by counsel for the plaintiff in error that the affidavit of the mayor to the effect that he advised the defendant to leave town because of the sentiment that had developed against him was uncontradicted by the State, and that this undisputed fact was sufficient to demand a change of venue. In this we disagree with able counsel, when we consider the evidence as a whole. Under the evidence submitted, the judge was authorized to deny the motion for change of venue.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *Page 504