Opinion
32717.
DECIDED SEPTEMBER 22, 1949.
Change of venue; from Crisp Superior Court — Judge Gower. July 30, 1949.
E. F. Strozier, George M. Mixon, for plaintiff in error.
Harvey L. Jay, Solicitor-General, Wright Reddick, contra.
Where, as here, the evidence on the question of a change of venue is in conflict, the judgment of the trial court denying the defendant's motion will not be reversed, it otherwise appearing to be without error, and it not appearing to constitute an abuse of the discretion of the trial court.
DECIDED SEPTEMBER 22, 1949.
John Barronton and his son James were indicted in Crisp County Superior Court on a charge of murder. They filed motions for change of venue, which were heard together and alleged as grounds thereof that an impartial jury could not be selected within the county, and that the accused would either be lynched or there would be danger to him of serious bodily injury if the case were brought to trial in Crisp County, and especially if a verdict finding a less offense than murder were returned against him.
The defendant's evidence included his sworn petition, alleging that a "vast and untold amount of false, prejudicial, unwarranted and unfounded gossip, rumors and propaganda and such poisonous campaign [had] been carried on for the sole purpose of preventing him from receiving a fair and impartial trial . . that newspapers, radio and other news disseminating agencies are [inflating] any bit of news . . that his wife and daughter were arrested in consequence without legal justification . . that by reason of threats communicated to him . . he believes that he is in imminent danger of mob violence," and other allegations of the same character.
James Barronton's affidavit stated that a fellow prisoner had informed him that "he had heard that if they were tried in Crisp County they would not live to set foot on the ground."
Identical affidavits of ten witnesses stated that there had been much talk that if the defendants "were not speedily tried and convicted, this matter will be taken in hand by the aggrieved parties." Certain newspaper accounts of the shooting were also introduced, none of which showed any particular animus in the matter.
For the State, the sheriff testified that he had heard nothing of any poisonous campaign or gossip-mongering against the man, that the general public appeared to have no prejudice, and that he was convinced a fair trial could be had. This testimony was corroborated by the chief of police, a member of the Georgia Bureau of Investigation, and numerous business men and residents of the county.
After hearing the evidence, the trial judge overruled the motion for change of venue, which ruling is assigned as error.
In Griffin v. State, 59 Ga. App. 334 ( 1 S.E.2d 41), this court held: "Under Code § 27-1201, it is the duty of the trial judge, upon his own motion or upon it being shown at a hearing on a motion for change of venue `that there is probability of danger of lynching or other violence' to grant a change of venue. This provision is mandatory. See Johns v. State, 47 Ga. App. 58 ( 169 S.E. 688); Graham v. State, 141 Ga. 812, 817 ( 82 S.E. 282). The evidence adduced upon the hearing of the motion in the present case was largely opinion evidence, without any specific facts or acts upon which to base the same, and it was denied by other and contradictory evidence on the part of the State. `While it is mandatory upon the judge to whom a petition for change of venue is presented in behalf of a defendant in a criminal case 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.' Broxton v. State, 24 Ga. App. 31 ( 99 S.E. 635); Goumas v. State, 44 Ga. App. 210 ( 160 S.E. 682)."
The action of the trial judge in denying the motion for change of venue, under the contradictory evidence adduced, was not reversible error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.