Coleman v. State

• Decision Date: 14 May 1914
• Docket Number: (No. 334.)
• Citation: 141 Ga. 737,82 S.E. 227
• Parties: COLEMAN. v. STATE.
• Court: Georgia Supreme Court

82 S.E. 227

(141 Ga. 737)

COLEMAN.

v.STATE.

(No. 334.)

Supreme Court of Georgia.

May 14, 1914.

(Syllabus by the Court.)

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

W. A. Coleman was convicted of murder and brings error. Affirmed.

Jno. R. Cooper, of Macon, D. B. Nicholson, of Rochelle, and Haygood & Cults, of Fitzgerald, for plaintiff in error.

Hal Lawson, of Abbeville, J. W. Dennard, of Cordele, J. B. Wall, Sol. Gen., of Fitzgerald, and Warren Grice, Atty. Gen., for the State.

EVANS, P. J. The plaintiff in error, W. A. Coleman, was jointly indicted with his son, Jim Coleman, and with W. H. Stevens for the murder of Leon Melvin. The plaintiff in error was separately tried, and was convicted with a recommendation to mercy.

1. The homicide occurred on April 6, 1913, and on September 15, 1913, all of the defendants made application for a change of venue on the ground that an impartial jury could not be obtained in the county in which the crime was alleged to have been committed. On this application the court heard evidence and refused a change of venue. Applicants presented a bill of exceptions, which the judge refused to certify on the ground that the judgment was interlocutory and not embraced within the act of 1911 (Acts 1911, p. 74). Whereupon applicants filed a petition to this court, praying a writ of mandamus to compel the certification of their bill of exceptions. This court declined to issue the writ. Coleman v. George, 140 Ga. 619, 79 S. E. 543. Exceptions pendente lite were then taken to the refusal of the court to change the venue. The Penal Code 1910, § 964, provides for a change of venue in cases wherever an impartial jury cannot be obtained in the county where the crime was committed. The motion to change the venue in this case is based upon the impossibility to obtain a fair and impartial jury in the county, and not upon any ground contained in the amending act. Coleman v. George, supra. Section 964 was codified from the act of 1895, which was construed in White v. State, 100 Ga. 659, 28 S. E. 423. In the opinion in that case, Mr. Justice Atkinson, after referring to the necessity, under the old law, of examining all persons in the county who were liable to serve on juries before the venue could be changed to a county other than where the crime was alleged to have been committed, said:

"That act [the act of 1895] institutes a new order of things; and now it is competent for the judge of the superior court, in any criminal case, to change the venue of the trial of such case whenever, in his judgment, an impartial trial cannot be had in the county where the crime was committed. In order to ascertain whether such trial can be there had, it is competent for him to hear the testimony of witnesses, oral or upon affidavit, and as well to hear any other evidence which may be competent and relevant. The law leaves this matter largely, we might say almost entirely, in the discretion of the trial judge. It imposes upon him a responsibility of making this examination; and this court has no power to control his discretion with respect to such matters, unless it has been plainly and manifestly abused."

The circuit judge was on the scene, he heard the evidence and had the opportunity of observing the manifestations of public temper, and he certifies to his belief that the defendants could have and did have a trial by a fair and impartial jury. After a care-ful reading of the record, we do not see anything to show that the court abused his discretion, or that the Jury which tried the defendant was other than fair and impartial. See Rawlins v. State, 124 Ga. 31, 52 S. E. 1.

2. The motion to continue the case on the ground of alleged absent witnesses did not fulfill the...