Blevins v. State

• Decision Date: 27 November 1963
• Docket Number: No. 40407,No. 2,40407,2
• Citation: 108 Ga.App. 738,134 S.E.2d 496
• Parties: James M. BLEVINS v. The STATE
• Court: Georgia Court of Appeals

Page 496

134 S.E.2d 496

108 Ga.App. 738

James M. BLEVINS v. The STATE.

No. 40407.

Court of Appeals of Georgia, Division No. 2.

Nov. 27, 1963.

Rehearing Denied Dec. 10, 1963.

Syllabus by the Court

The trial court did not err in denying the defendant's motion for change of venue.

Frank M. Gleason, Rossville, for plaintiff in error.

Earl B. Self, Sol. Gen., Bobby Lee Cook, Summerville, for defendant in error.

Syllabus Opinion by the Court

JORDAN, Judge.

The defendant was indicted for murder by the grand jury of Walker County on August 22, 1963, and on the following day he moved for a change of venue on the grounds that there would be a probability or danger of lynching or other violence if he were tried in Walker County, and that he could not obtain a trial by a fair and impartial jury in that county. After a hearing at which evidence was adduced in behalf of the defendant and the State, the trial court entered an order denying the motion for change of venue. The exception is to that judgment.

1. While it is mandatory upon the judge to whom a petition for change of venue is presented in behalf of the defendant in a criminal case 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 such danger exists; and the rule in this court on review of the judgment of the trial court denying a change of venue has been stated as follows: 'Was it too clear and certain to admit of dispute that the superior court erred in refusing to change the venue, or, to put it differently, does it manifestly appear to this court that the lower court erred in its judgment under the evidence when it said that it did not necessarily appear that there was a probability or danger of lynching or other violence? Johns v. State [47 Ga.App. 58, 169 S.E. 688], supra; Bivins v. State, 145 Ga. 416, 423, 89 S.E. 370; Graham v. State, 141 Ga. 812, 819, 82 S.E. 282; Kennedy v. State, 141 Ga. 314, 80 S.E. 1012.' Geer v. State, 54 Ga.App. 216, 187 S.E. 601.

'* * * [W]here the evidence upon such issue is in conflict or based upon opinion evidence without specific facts or acts upon which to base a judgment changing the venue, a judgment denying the defendant's motion for such change will not be reversed. Broxton v. State, 24 Ga.App. 31, 99 S.E. 635; Goumas v. State, 44 Ga.App. 210, 160 S.E. 682; Barronton v. State, 80 Ga.App. 44, 55 S.E.2d 252; Garrett v. State, 80 Ga.App. 118, 55 S.E.2d 672; English v. State, 82 Ga.App. 351, 61 S.E.2d 152.' Crane v. State, 94 Ga.App. 63(2), 93 S.E.2d 667.

The record in this case is devoid of any evidence of acts of violence, either consummated or attempted, against the defendant and there is no evidence showing an outward manifestation of concerted ill-will toward the defendant by the citizens of Walker County from which the danger of mob violence might reasonably be inferred. The record does disclose that the defendant was removed from the Walker County jail at the request of the sheriff of that county and transferred to the Floyd County jail where he has remained except for an overnight incarceration in the Polk County jail to which he was removed when an anonymous telephone call was received by the Floyd County Police Department to the effect that a mob from 'up north' was coming to get the defendant; and counsel for the defendant has strongly relied on these circumstances in his motion for change of venue. However, the Sheriff of Walker County testified that the defendant was removed from the county jail, not because of any apprehension of possible violence, but because of overcrowded conditions at the jail and the lack of adequate security facilities for detaining a prisoner charged with two murders; and there was no evidence substantiating the information anonymously received by telephone concerning the forming of a mob.

Several witnesses for the defendant testified that in their opinion it would be dangerous for the defendant to be released from jail on bail or to be brought back to Walker County for trial but their opinion testimony was sharply contradicted by that of witnesses for the State; and the evidence showed that the defendant was taken to the Walker County courthouse for his preliminary hearing without incident although a large, but orderly, crowd was...