Syllabus
by the Court.
The
judge erred in rendering the judgment refusing a change of
venue.
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.
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. 87 S.E. 285. 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 assembled 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 killed] 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 fellows
say, 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 be 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 here and
placed upon trial for the offense of accessory before the
fact for the murder of Mr. Gleaton, I will be compelled to
acknowledge that
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