Bivins v. State

• Decision Date: 27 June 1916
• Docket Number: (No. 509.)
• Citation: 145 Ga. 416,89 S.E. 370
• Parties: BIVINS. v. STATE.
• Court: Georgia Supreme Court

89 S.E. 370

(145 Ga. 416)

BIVINS.

v.STATE.

(No. 509.)

Supreme Court of Georgia.

June 27, 1916.

(Syllabus by the Court.)

Error from Superior Court, Crisp County; W. F. George, Judge.

Honor Bivins was indicted for murder, and from a judgment denying a motion for change of venue, he brings error. Reversed.

E. F. Strozier, of Cordele, for plaintiff in error.

J. B. Wall, Sol. Gen., of Fitzgerald, J. T. Hill, of Cordele, and Jesse Grantham, of Fitzgerald, for the State.

FISH, C. J. This is a motion for change of venue under the act of 1911. From the petition it appears: At the spring term, 1915, of the superior court of Crisp county, Honor Bivins was indicted and tried on the charge of being accessory before the fact to murder. There was a verdict of guilty, he was refused a new trial, and on a bill of exceptions to this court, assigning error upon such refusal, the judgment of the trial court was reversed. S7 S. E. 2S5. It appears that T. E. Gleaton, the person alleged to have been murdered was, at the time he was killed, treasurer of Crisp county and a citizen of much prominence.

The evidence submitted on the hearing of the motion for change of venue very strongly tended to establish the fact that during the trial of the accused (about a year prior to the hearing of the motion) there was imminent danger that he would be lynched; indeed, it seems that this fact was not seriously controverted by the state on the hearing under review. Two members of the bar of Crisp county, who were in no wise connected with the case, joined in an affidavit put in evidence in behalf of the movant, from which we quote as follows:

"During the progress of the trial the courtroom was crowded to an unusual degree, and to its full capacity, by persons from all parts of the county, and this crowd remained during the entire trial. Affiants say that it was common talk about the courthouse, and about the streets on that occasion, that the defendant would be lynched, especially if the jury failed to agree, or returned a verdict other than that of guilty. Affiants say that the jury remained out all the afternoon deliberating upon the case, and, as the afternoon advanced, groups of men gathered about the jail where the defendant was confined, and remained there. About 6 o'clock in the evening the court adjourned for the day, but the crowd still remained in and around the courthouse and jail. About 8 or 8:30 o'clock at night the attitude of the crowd became so threatening that the judge was sent for, as well as a number of citizens, who, at the time, were assembled at one of the churches. Affiants say that upon arrival the judge made a speech to the crowd assem bled in the courtroom, in which he asked that the law be allowed to take its course, and assuring them that in the event the jury failed to agree by morning he would declare a mistrial, and immediately put the defendant upon trial again. Affiants further say that about 9:30 o'clock, just after the judge had concluded his address, it was announced that the jury had made a verdict, and they were immediately brought from the hotel, where the judge had caused them to be sent some hours before, and the verdict published. As soon as the verdict was published the defendant was sentenced, and at the earliest possible moment was removed by the officers from the county. Affiants say that feeling ran very high against the defendant, and there was great dissatisfaction expressed by various persons when it. became known that the defendant had been removed by the officers to another county. Affiants say that, from their observation and knowledge of conditions as they existed at that time, the defendant would have been lynched if the crowd had known that the officers intended to remove the defendant from the county, or if he had not been convicted by the jury; and affiants believe that the conditions which then existed have not materially changed, and that if the defendant is brought back to this county for trial he would be in grave danger of personal violence at the hands of irresponsible parties."

Another disinterested member of the bar of the county testified orally to practically the same effect. The clerk of the superior court of the county and eight other citizens joined in an affidavit containing language practically identical with that quoted from the affidavit referred to above. The movant and his attorney made affidavits tending to sustain the allegations of the motion, and that on account of hostile demonstrations of the crowd about the jail during the trial, and at night after its conclusion, the movant was taken to the jail of Bibb county, wherein he has ever since been confined.

The sheriff, in his affidavit introduced by the state, said: "The judge gave me instructions to take the negro away." We quote further from his affidavit, viz.:

"I took him [Bivins] to Macon the next day after his conviction, on the 2 o'clock train, is my recollection; walked to the train with him; only one other person with me to help me take him to the train: went with him right down Eighth street to the depot. There was no attempted or threatened violence towards him on the trip. I took him away because a motion for new trial was made, there was considerable feeling throughout the county, and the motion had been made, and I didn't want to keep him in jail here, and I took him away for safety. The jail here is not so very good; it has been broken once before. It wasn't to keep him from breaking out that I took him away. I didn't want to have any more trouble about it. * * * My opinion of what would have become of the defendant on that occasion, if the jury had failed to convict him, is that, if I hadn't outguessed them, there would have been a lynching. * * * The reason that crowd didn't lynch him that night was on account of the Gleaton boys [sons of the person killedl going in among them and dispersing them. I know the crowd was listening to the Gleaton boys. If he was brought back here and acquitted, they would lynch him right quick if the Gleaton boys said so; but I don't believe they would do it anyway, whether the Gleaton boys said so or not. I base that on the fact that the Gleaton boys are men of good character and standing, and the other fellowssay, if you fellows don't want anything done, we are not going to do it. The Gleaton boys were back of the whole business; and that night the crowd said, if the Gleaton boys were satisfied, they were, and were going home; and a bunch of boys stayed around here."

One of the state's witnesses testified in part as follows:

"If the negro hadn't been convicted, had been turned loose at that time, I sort of think, if the officers hadn't handled him mighty nice and mighty slick, they would have pulled him, I sort of think so; the blood was running pretty high right at that time, you know; there was some of them that wanted to get hold of him; they would have killed him if they got a chance. I can't say so much about them being ready to make that chance for themselves, or they would have got him; but at this time the people's blood don't run so high. * * * But I don't think there would be any danger at this time. I don't know what will he the result at this time if he was acquitted; I can't say about that."

Another state's witness testified:

"People have been lynched in this county. * * * The reason I would think there would be no danger to this negro if he was brought back, I discussed this case with Preas Gleaton that night of the trial, and he told me that he was willing, and was reasoning that the law should take its course."

Language as follows is found in the affidavit of one of the state's witnesses:

"In the event Honor Bivins is brought back hero and placed upon trial for the offense of accessory before the fact for the murder of Mr. Gleaton, I will be compelled to...