Opinion
32711.
DECIDED OCTOBER 11, 1949.
Change of venue; from Worth Superior Court — Judge Crow presiding. July 28, 1949.
W. J. Forehand, Bob Humphreys, E. L. Smith, for plaintiff in error.
J. Bowie Gray, Solicitor-General, contra.
Where, on a motion for change of venue under Code § 27-1201, the evidence in support thereof consists of the opinions of witnesses of the county where venue has been laid, unsupported by facts upon which the opinions are based, the trial judge is not bound, in the absence of a counter-showing, to grant the change where, in his opinion, the change of venue is not required in order for the defendant to procure a fair trial.
DECIDED OCTOBER 11, 1949.
E. R. Garrett was indicted in the Superior Court of Worth County for illegally selling intoxicating liquors. There were two indictments, one charging an offense committed October 17, and the other an offense committed October 19, 1948. The indictments were returnable to the November term, 1948, and were continued at the defendant's request to the April term, 1949. The defendant then obtained another continuance. The next term of court convened July 25, and on July 26, 1949, the defendant submitted a motion for change of venue on the ground that an impartial jury could not be obtained in Worth County to try the above-stated cases. The judge to whom this petition was presented disqualified himself because he had been solicitor-general at the time the indictments were prepared. The plea was therefore tried before another judge. The defendant Garrett submitted 21 affidavits in identical form, the pattern being as follows:
"Personally appeared ____________ who, being duly sworn, deposes and says that in his judgment he is convinced that an impartial jury cannot be obtained in Worth County by E. R. Garrett, defendant in two cases pending in Worth Superior Court, on charges of selling whisky; deponent further states that he has lived in Worth County for ____ years and had known the defendant E. R. Garrett for 30 years."
There was some oral testimony and cross-examination of witnesses, but the affidavits constituted substantially the entire evidence at the hearing.
The judge thereafter denied the motion for change of venue, and this ruling is assigned as error.
Code § 27-1201 states in part: "The defendant in any criminal case in the superior court may move by petition in writing for change of venue whenever, in his judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. Upon the motion it shall not be necessary to examine all persons in the county liable to serve on juries, but the judge shall hear evidence by affidavit or oral testimony in support of or against the motion; and if, from the evidence submitted, the court shall be satisfied that an impartial jury cannot be obtained to try the case, the judge shall transfer it to any county that may be agreed upon by the solicitor-general and the defendant or his counsel, to be tried in the county agreed upon."
It is to be noted that the petition for change of venue may be presented whenever, in the opinion of the defendant, an impartial jury cannot be obtained, and it will be granted when, in the opinion of the judge, this fact is made to appear.
The record discloses 21 affidavits stating that, in the opinion of the deponents, an impartial jury cannot be obtained. The opinions of these 21 witnesses and the defendant apparently were not sufficient to induce the trial judge to form the same opinion and, since they do not purport to be anything more than the individual opinions of the persons involved, nothing contained therein would make it mandatory upon the trial court to be governed thereby.
The decision as to whether or not the accused can obtain an impartial jury in the county in which the indictment was presented is essentially within the discretion of the trial judge and, unless this discretion is abused and the decision reached manifestly erroneous, it will not be reversed by this court. Rawlins v. State, 124 Ga. 31 (2) ( 52 S.E. 1); Best v. State, 26 Ga. App. 671 (1) ( 107 S.E. 266); Wilburn v. State, 140 Ga. 138 (2) ( 78 S.E. 819); Coleman v. State, 141 Ga. 737 (1) ( 82 S.E. 227); Johns v. State, 47 Ga. App. 58 (1) ( 169 S.E. 688).
The fact that no evidence was produced to rebut that offered by the defendant is not conclusive, since, if the evidence offered was not in itself sufficient to convince the trial judge that the motion should be granted, there would be no necessity for rebuttal testimony.
In Douberly v. State, 184 Ga. 573 ( 192 S.E. 223), where a motion for change of venue of a trial for murder was presented, the evidence of the defendant consisted of publications in the local newspapers, opinions and sayings of the officers in relation to the crime, and opinions of witnesses as to the impossibility to obtain an impartial jury. The Supreme Court held that this evidence, although uncontradicted, was insufficient to require an order changing the venue.
In view of the nature of the evidence submitted, the trial judge did not err in denying the motion for change of venue.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.