Opinion
37439.
DECIDED JANUARY 12, 1959.
Change of venue. Douglas Superior Court. Before Judge Foster. September 22, 1958.
Robert L. Mitchell, Harris Bullock, for plaintiff in error.
Robert J. Noland, Solicitor-General, James I. Parker, Assistant Solicitor-General, E. B. Brown, Harold L. Murphy, contra.
Where there is any apparent danger of violence to the person of a defendant or any witnesses in the case or where there is chance that a defendant will not be given his fundamental right to a fair trial, a change of venue should be granted.
DECIDED JANUARY 12, 1959.
Bennett Kyle Yancey was indicted by the grand jury of Douglas County on a charge of assault and battery in that on May 11, 1958, he assaulted J. B. Cooper, a deputy sheriff of Douglas County. The alleged assault arose out of the defendant's arrest and incarceration in the Douglas County jail. The defendant contends that he was brutally attacked without cause by Cooper in the presence of Sheriff O. M. Redding, who did nothing to assist him, and that he acted in self-defense. The defendant brought before Judge William A. Foster of the Superior Court of Douglas County a motion for change of venue which motion was denied, and to this judgment he excepts.
The evidence shows substantially as follows: The defendant testified that on May 11, 1958, J. B. Cooper, Deputy Sheriff of Douglas County, arrested him and brought him to the Douglas County jail; that as they walked in the door Cooper stated to Sheriff Redding, "We have a man here that says we can't stop him for a license check. . . Damn him, we'll show him. We'll put him in jail and we'll keep him for twenty-four hours without a bond," to which Sheriff Redding replied, "Yes, damn him, put him back there and we'll show him"; that the defendant had a case to try in DeKalb County Superior Court the next day for which he had been waiting two years, and, as the situation seemed very serious and he might not be available to represent his client, he stepped over to Sheriff Redding and said, "Now, wait a minute, Sheriff, I have got a right to make — " and he was not able to complete his statement that he wanted to make a property bond because Cooper grabbed him by the shoulders and said, "G — d — you, I said, come here," and he jerked the defendant several feet causing him to lose his balance and fall to the floor; that while he lay on the floor on his back Cooper hit him with his hands, his gun falling down beside the defendant's head; that Cooper said, "Let me get my damn gun. Let me get my damn gun"; that the defendant testified: "I grabbed his left arm with my right hand and the sheriff got the gun and because I was in a helpless position on my back on the floor in the county jail in the presence of two men armed with blackjacks and pistols and a hope that they would get him off from me and to keep me from losing my life I told him — I submitted, although, in fact, I had never resisted arrest. And I got him off me by taking my feet and pushing him backward. After I had got off the floor Deputy Sheriff Cooper still was armed with a blackjack and Deputy Sheriff — Sheriff Redding was armed with two pistols, I suppose, at least he had Cooper's and a blackjack. Cooper tried to beat me with his fist and I opposed the assault. And I consider I have good reasons to fear violence at their hands."
The defendant further testified that, immediately after this altercation, Solicitor-General Noland came over to the jail and that thereafter, on or about August 26th at the Polk County courthouse, the defendant and Mr. Robert L. Mitchell had a conversation with Mr. Noland; that Mr. Noland said that, when he learned that the defendant was involved, he feared for his safety and wanted to get him away from there (Douglas County jail) as soon as possible because the Coopers were related to a Mrs. Garmon and the Coopers were angry with the defendant for having represented the claimant in that case, and further Mr. Noland said that the Coopers were very clannish people; that the defendant thought he had reason to fear further assault; that there was further conversation with Mr. Noland about how the officers handled the situation, "that they [the officers] didn't kill me and therefore they were to be commended for that." The defendant then said that, based on the way he had been treated already and the statement of the solicitor-general and statements of the witnesses, he fears future violence if he stands trial in Douglas County; that the defendant does not think he is safe or his witnesses.
On cross-examination the defendant testified that he did not know whether he had any bruises or marks on his person the next day after the altercation because his jail cell lacked a mirror; but that he could feel and could describe his feelings outside and inside; that in DeKalb Superior Court at 10 o'clock May 12th he had a bruise on his right ear; that he did not hit Cooper until he had managed to scramble to his feet; that Cooper drew his hand back in "an effort, and what appeared to be a blow with sufficient force" to knock him down and bring serious injury to him, and he blocked Cooper's blow with his left hand and hit Cooper in self-defense. The defendant testified further that Sheriff Redding came over and picked up Cooper's gun which had fallen to the floor beside his head; that he had a blackjack and raised it up; that the solicitor-general came to the jail immediately after the occurrence and informed the defendant that Cooper's sister, a Mrs. Garmon, was angry with the defendant; that the defendant told Mr. Noland he could not understand her anger because the suit in which she was involved concerned liability insurance and nothing more; that if the solicitor withheld from Cooper until the following day such information regarding the connection between the defendant and Cooper's sister for the purpose of the defendant's protection and to keep him from being further assaulted, then the defendant was certainly grateful; and that the defendant further appreciated the solicitor's efforts to get the defendant out and away from there.
On redirect examination the defendant testified that he obtained from a Thomas Wade who witnessed the occurrence a sworn statement that he was in Douglas County jail on May 11, 1958; that he witnessed the fight between Cooper and the defendant and that Cooper hit first and the defendant acted in self-defense; that he is willing to testify provided he is not under any circumstances placed in the custody of Douglas County officers, for the reason that he fears harm at their hands if he testifies against them.
The court then allowed a sworn affidavit from both Mr. and Mrs. H. V. Branan of Lithia Springs, Georgia, which shows substantially that about September 8, 1958, Mr. Noland came into their place of business soliciting support in the forthcoming election, and during the course of the conversation, the solicitor made the following statement: "I am afraid for Kyle [Yancey] because of what the Coopers might do. They are a clannish and close-knit family. They stick together. I'm afraid they are going to cause us trouble."
There was introduced in evidence at this time a sworn affidavit from Joseph Williams, a 16-year-old inmate of Reidsville prison, stating substantially that the witness had been severely beaten at the hands of Sheriff O. M. Redding and Deputy Sheriff James Rainwater in Douglas County, Georgia, and that he is afraid to come back to Douglas County for fear of serious harm at their hands.
The sworn affidavit of Charles Ray Pope, inmate of Reidsville prison, was introduced stating substantially that he agreed to appear as a witness on behalf of the defendant if the case is not tried in Douglas County because he fears violence at the hands of Sheriff Redding and his deputies if placed in their custody; that on a previous occasion while under arrest he was viciously and brutally assaulted by the sheriff and on this same occasion witnessed a brutal assault on a fellow prisoner; that the witness still suffers with his back and head as a result of the assault upon him.
Since the State neither filed an answer to the petition for change of venue nor introduced any evidence, this case resolves itself into a question of law, there being no conflicting facts upon which the discretion of the trial court might operate, and the only issue is whether the defendant's case as presented brings him within the statutory provisions for change of venue. In 22 C.J.S. 300, Criminal Law, § 187, it is stated: "Subject to constitutional restrictions, the right to a change of venue in criminal cases and the extent and manner of exercising such right are matters of statutory regulations; the legislature may take away the right altogether, or it may enlarge such right under a constitutional provision conferring authority to make such modifications of existing laws as may be necessary. . ." Our Constitution (Art. VI, Sec. XV, Par. I; Code, Ann., § 2-5001) provides that the power to change venue is vested in the superior courts "to be exercised in such manner as has been, or shall be, provided by law." Under Code § 27-1201, the court should change the venue of a criminal proceeding "whenever, in his judgment, the accused party will be lynched, or there is danger of violence being attempted to be committed on said accused, if carried back, or allowed to remain in the county where the crime is alleged to have been committed" and if "the evidence submitted shall reasonably show that there is probability or danger of lynching, or other violence." Construed with other provisions of our Constitution (Code, Ann., §§ 2-102, 2-103, 2-105) which guarantee to every person the right to equal and impartial protection of the law, due process of law, and the right to a fair trial, it must be held that the "violence" referred to in Code § 27-1201 means not only that physical violence threatened by mobs or other lawless elements, but also violence to the defendant's fundamental right to a fair trial.
This movant does not complain that an impartial jury cannot be convened in Douglas County, but he says in effect that an impartial jury will do him no good if he is unable to produce witnesses, and that he cannot produce certain witnesses in that county because of their fear, which he contends is justified, that they will suffer retaliatory measures from the prosecuting witness in this case. While the situation presented is novel, these facts, which must be taken as true in the absence of contradiction, are sufficient to show a danger of "violence attempted to be committed upon the accused" within the meaning of the statute. The word "violence" should not be limited to physical violence alone, but, in this case, should be extended to mean violence to the defendant's right to a fair trial under the circumstances.
The appellate courts have seen fit to change venue in any number of cases because a defendant was put in possible danger of violence. This was done in Kennedy v. State, 141 Ga. 314 ( 80 S.E. 1012). In Pinkston v. State, 80 Ga. App. 268, 271 ( 55 S.E.2d 877) this court said: "Code § 27-1201 . . . further provides in part that `if the evidence submitted shall reasonably show that there is probability or danger of . . . violence, then it shall be mandatory on said judge to change the venue to such county as, in his judgment, will avoid such. . .'
"What degree of evidence would be sufficient to establish a danger of violence to the accused is a question of such difficulty, and which must necessarily vary so greatly with the circumstances of each case, that it would be impossible to define its limits with exactitude. The danger may be obvious in some cases, and latent in others. It may be more threatening because it is unannounced. . .
"Where there is so much doubt as to the threat of . . . violence, the welfare of the State, as well as that of the citizens of the county in which the alleged crime was committed, demands, no less than the welfare of the individual defendant, that such doubt should be removed. This can only be accomplished by a change of venue, by which the State's case is in no way prejudiced and the society of this State as a whole in no way suffers." The office of the sheriff is set up to enforce the laws enacted for the protection of the lives, persons, property, health, and morals of the people. A defendant in a criminal action has a right to depend on the law-enforcement agencies to protect him. In State of Georgia v. Jeter, 60 Ga. 489, 491, the Supreme Court said: "The general scheme of the law is not to trust the sheriff to perform the functions of an officer where he has the interest of a party. He is not to be both priest and penitent . . . Legal process is subject to abuse, and interest is a temptation which the law supposes average human nature may be unable to withstand." It is elementary that any defendant is entitled to have the venue of his case laid in a county where he and his witnesses are free from intimidation, and/or violence, and where he has the right to expect protection on behalf of himself and his witnesses from all law-enforcement agencies.
Judgment reversed. Townsend and Carlisle, JJ., concur.