Opinion
33235.
DECIDED SEPTEMBER 12, 1950.
Change of venue; from Clayton Superior Court — Judge Guess. June 17, 1950.
Frank H. Morrison, for plaintiff in error.
Roy Leathers, Solicitor-General, contra.
1. An exception to the denial of a petition for a change of venue based solely upon the ground that an impartial jury cannot be obtained in the county where the trial is to be held is not a proper matter for a direct bill of exceptions.
2. Where the evidence on the question of a change of venue is conflicting upon the question of the danger of violence or lynching, the judgment of the trial court denying the motion for change of venue will not be reversed in the absence of evidence of a manifest abuse of discretion.
DECIDED SEPTEMBER 12, 1950.
An indictment was returned against Clarence English in the Superior Court of Clayton County charging him with rape. The defendant filed two motions for change of venue. One was based upon the ground that "an impartial jury cannot be obtained in Clayton County." The other was based upon the ground that "there is danger of violence being attempted on . . the accused if [he] is carried back to Jonesboro, Georgia, the county site of Clayton County, for trial inasmuch as the tempers and attitudes of the people of Clayton County have been inflamed against . . the accused because of there having been published and circulated over the county reports in The Atlanta Journal and The Atlanta Constitution, charging the accused with having committed statutory rape against the person of a ten year old white girl. . ." The evidence adduced upon the hearing of the motions disclosed that the defendant and his alleged victims were residents of Fulton County and that the defendant was arrested in and is presently confined in Fulton County. The newspaper accounts of crime gave the details of the crime and related that the crime had been committed in Clayton County and that the defendant had a criminal record and that the reporter had been informed by the arresting officers in Fulton County and the Sheriff of Clayton County that it would not be safe to confine the defendant in Clayton County. These details of the newspaper articles were confirmed by the reporter, who appeared as a witness, but the officers in question denied that they had made statements that it was unsafe to confine the defendant in Clayton County. The reporter testified that he had heard persons express their indignation about the case but that none of these persons were in Clayton County. There was no evidence of any acts of violence against the defendant or of threats of lynching nor was there evidence that there was a probability of danger of violence being committed on the defendant in Clayton County. The trial judge entered the following order upon both the motions: "There being no evidence offered either by sworn testimony or by affidavit that personal violence may be committed on the defendant in Clayton County or that he is in danger of having personal violence committed upon him in said county and there further being no evidence offered either sworn testimony or by affidavit that the defendant cannot be given a fair trial in Clayton County, the motions for change of venue are hereby denied." The defendant, to the denial of his motions, filed a direct bill of exceptions in the Supreme Court and that court transferred the case to this court for determination.
1. The exception to the denial of the petition for a change of venue based solely upon the ground "that an impartial jury cannot be obtained in Clayton County" cannot be considered at this time as there has been no trial of the defendant or final judgment therein. While the denial of a petition for change of venue, based upon such ground, is ground for exceptions pendente lite, it is no ground for a direct bill of exceptions. Coleman v. George, 140 Ga. 619 (2) ( 79 S.E. 543); Anderson v. State, 190 Ga. 455 (2) ( 9 S.E.2d 642); McCullough v. Searcy, 45 Ga. App. 841 ( 166 S.E. 372); Etchison v. State, 59 Ga. App. 876 ( 2 S.E.2d 673).
2. In Griffin v. State, 59 Ga. App. 333, 334 ( 1 S.E.2d, 41), it was 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 or danger of lynching, or other violence,' to grant a change of venue. This provision is mandatory. See Johns v. State, 47 Ga. App. 58, 64 ( 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 a change of venue is presented in behalf of a defendant in a criminal case . . [under the Code section cited supra] 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)." See also Barronton v. State, 80 Ga. App. 44 ( 55 S.E.2d 252); Garrett v. State, 80 Ga. App. 118 ( 55 S.E.2d 672). 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. Gardner and Townsend, JJ., concur.