Garrett v. State, 32711.

• Decision Date: 11 October 1949
• Docket Number: No. 32711.,32711.
• Citation: 80 Ga.App. 118,55 S.E.2d 672
• Parties: GARRETT. v. STATE.
• Court: Georgia Court of Appeals

55 S.E.2d 672

80 Ga.App. 118

GARRETT.

v.STATE.

No. 32711.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1949.

E. R. Garrett was indicted in the Superior Court of Worth County, Carl E. Crow, J., for illegally selling intoxicating liquors.

Defendant's motion for change of venue on the ground that an impartial jury could not be obtained was denied, and defendant brought error.

The Court of Appeals, Townsend, J., affirmed the judgment holding that the trial court did not abuse its discretion in denying the motion which was supported only by affidavits expressing opinions.

Syllabus by the Court

Where on a motion for change of venue under Code, § 27-1201, the evidence in support thereof consists of the opinions of witnesses of the county where venue has been laid, unsupported by facts upon which the opinions are based, the trial judge is not bound, in the absence of a counter-showing, to grant the change where in his opinion the change of venue is not required in order for the defendant to procure a fair trial.

E. R. Garrett was indicted in the Superior Court of Worth County for illegally selling intoxicating liquors. There were two indictments, one charging an offense committed October 17, and the other an offense committed October 19, 1948. The indictments were returnable to the November term, 1948, and were continued at the defendant's request to the April term, 1949. The defendant then obtained another continuance. The next term of court convened July 25, and on July 26, 1949, defendant submitted a motion for change of venue on the ground that an impartial jury could not be obtained in Worth County to try the above stated cases. The judge to whom this petition was presented disqualified himself because he had been Solicitor General at the time the indictments were prepared. The plea was therefore tried before another judge. The defendant Garrett submitted 21 affidavits in identical form, the pattern being as follows:

"Personally appeared--who, being duly sworn, deposes and says that in his judgment he is convinced that an impartial jury cannot be obtained in Worth County by E. R. Garrett, defendant in two cases pending in Worth Superior Court, on charges of selling whisky; deponent further states that he has lived in Worth County for--years and had known the defendant E. R. Garrett for 30 years."

There was some oral testimony and cross-examination of witnesses, but the affidavits constituted substantially the entire evidence at the hearing.

The judge thereafter denied the motion for change of venue, and this ruling is assigned as error.

W. J. Forehand, Sylvester, Bob Humphreys, Moultrie, E. L. Smith, Albany, for plaintiff in error.

J. B. Gray, Sol. Gen., Tifton, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

Code, § 27-1201 states in part: "The defendant in any criminal case in the superior court may move, by petition in writing, for a change of venue, whenever, in his judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. Upon the motion it shall not be necessary to examine all persons in the county liable to serve on juries, but the...