Graham v. State

• Decision Date: 12 June 1914
• Docket Number: 394.
• Parties: GRAHAM v. STATE.
• Court: Georgia Supreme Court

82 S.E. 282

141 Ga. 812

GRAHAM v. STATE.

No. 394.

Supreme Court of Georgia

June 12, 1914

Syllabus by the Court.

Under the allegations of the petition for a change of venue on the ground that there was danger of lynching or violence in the county where the crime was alleged to have been committed the evidence introduced in support thereof, the failure on the part of the state to deny or rebut allegations and evidence of what transpired between a mob and the sheriff of the county after the homicide and shortly before the petition was made, and in the light of the entire evidence, it was error to refuse to grant a change of venue.

Error from Superior Court, Coffee County; J. W. Quincey, Judge.

Charlie Graham was indicted for murder. Petition for change of venue denied, and he brings error. Reversed.

Evans P.J., and Beck, J., dissenting.

Charlie Graham was charged with the offense of murder, and incarcerated in the county jail of Coffee county. On April 6 1914, he made a motion for a change of venue, under the act of August 21, 1911 (Acts 1911, p. 74). The motion was verified by the oath of the movant, and showed in substance as follows:

Petitioner was arrested and imprisoned on the charge of murdering one Lawrence Newbern and one Lester Graham in the city of Broxton, Coffee county, on the night of March 12 1914; the two being killed at the same time and place. An indictment has been returned, charging the petitioner with killing each of the persons named. The presiding judge has called a special term of the superior court to convene on April 6, 1914, and it is now in session, for the purpose of trying certain criminal cases, and particularly the one against petitioner; and it is the purpose of the court to try petitioner immediately on one or both of the charges of murder. Lawrence Newbern, one of the men whom the petitioner is charged with murdering, was a man well known and of large influence, having many influential friends, relatives, and acquaintances residing in every part of the county. Petitioner was reared in another county, and is practically unknown in Coffee county. Ever since the alleged murder was committed there has existed and still exists against him in the county the most intense hatred, prejudice, bitterness, and malice; and this feeling is general and possessed by a large number of the citizens. Ever since the alleged murder there have been constant and numerous threats by a large number of citizens of the county to lynch petitioner. There exists the strongest kind of determination to lynch him at sight, and his life is in serious and grave danger, by reason of the fact that there is danger of his being taken out and hung by a mob. He has been advised that a large body of citizens of the county have formed themselves together for the purpose of lynching him, and that they merely await an opportunity for that purpose. At the time of his arrest, which occurred only a few days before the making of the motion, open threats were made in his presence to immediately lynch him, and certain infuriated citizens would have done so at that time, save for the action of a former sheriff in hurrying him from the place of arrest to the jail, 12 miles distant. At the time of the arrest he was immediately hurried to the jail, before any considerable number of people were aware of the arrest, and before it was possible for a mob to form and lynch him. The jail is located in the city of Douglas, more than 10 miles from the scene of the alleged murder. "On the same night of his arrest, and so soon thereafter as it became generally known that he had been arrested and placed in jail, a large assembly of citizens gathered in said town of Broxton and formed a company for the purpose of coming to Douglas and taking your petitioner out of said jail and taking his life. That said purpose was only abandoned at that particular time because of the fact that the sheriff of Coffee county learned of said intention, and before said crowd left Broxton he got in communication by telephone with some parties at said place, and promised that if the crowd would disperse, and not attempt to lynch your petitioner, that a special term of the superior court of Coffee county would be called immediately, and that your petitioner should be tried at said term, and that the severest penalty known to the law would be meted out to him. Your petitioner states that said promise on the part of said sheriff that an immediate term of said court should be called and this petitioner tried, convicted, and sentenced to death is all that saved him from having been lynched on the occasion mentioned. Petitioner states that he was spared from lynching purely on the belief that he would be immediately tried and hanged; and your petitioner now states that he is completely handicapped in the preparation of any defense against said charges of murder, and that, under the conditions existing and that will exist on the trial of his case at said special term called as aforesaid to try your petitioner, it is and will be useless for him to attempt any defense to same, though he has a good defense, in that, should he defend against said charge or charges, and as a result of same he should receive a sentence of less than death, he would immediately be lynched, so that it only resolves itself into a matter of discretionary choice with your petitioner as to whether he shall forego that constitutional privilege and permit a verdict of guilty and judgment of death and thus end the predicament that faces him." He is informed and believes that the sentiment is so bitter against him that he will be taken by violence on the first occasion when he is presented to the general public view, and that such occasion will be afforded if he is placed on trial or brought into the superior court of Coffee county for public trial.

The solicitor general, on behalf of the state, made no formal answer to the petition, but introduced affidavits in opposition to it. On behalf of petitioner, affidavits were introduced from six residents of the county, who deposed to the effect that they had talked with and heard many citizens discuss the killing; that sentiment against the petitioner was very bitter and inflamed; that in their opinion it would be dangerous for him to be tried in Coffee county, and there would be danger that he would be lynched unless granted a change of venue, and he would be lynched if he should make a fight for his life on the trial and be in any manner successful. One of the deponents stated that the friends and acquaintances of Newbern, one of the deceased men, were determined that Graham should pay the penalty of death for the alleged murder, either from the gallows or by mob violence. A sister of the petitioner deposed that she lived about three miles from the town of Broxton, where the killing occurred, but it was not generally known that she was the sister of the petitioner; that the killing took place on the night of March 21st, and on the following morning a number of people from in and around Broxton came to her house to search for Graham; that some of those present stated that there were about 75 of them searching every pig path for Graham, that they would catch him and he would never see Broxton again, and that they had no idea that there would be anything but pieces left of him within five minutes after he was found; that they further stated that Graham had killed a good man and must pay for the crime; and one of them stated that he had shot at Graham the night before, and thought he had hit Graham in the leg, and was only sorry that it was not in the head; that after her brother was placed in jail she had made several trips to Douglas by railroad, and on nearly every occasion she was forced to hear the most terrible threats of vengeance against him; that only a few days before she made the affidavit she had heard one of several persons who were talking about the case say that there could be 500 people gotten together in a few minutes, who would be willing to lynch Graham, and he had to hang one way or another, and must die for the crime he had committed; and that she had heard from several sources that a crowd was made up at Broxton on the night of the arrest, for the purpose of going to Douglas to lynch Graham, but that, under a promise from the sheriff that court would be called at once and that Graham would be "legally hung," they agreed to wait until they could see whether he would be hung or not. A brother of petitioner deposed, among other things, as follows:

He has seen and talked with a large number of the citizens of the county, and is thoroughly familiar with the sentiment of the county regarding the killing. It is in a very excited condition, and a general feeling of hatred and malice prevails toward petitioner. He finds a strong current of opinion in favor of denying petitioner a trial at all, and a desire that he be taken from the jail and lynched. He finds another current of opinion and feeling that, if petitioner be tried immediately at the term of court called for that purpose, it would be all right, provided the defendant did not insist on making a strong defense and would practically plead guilty, so that the sentence of death would be rendered against him; and the general desire is that petitioner be punished with death, either by hanging or mob violence. In a conversation the sheriff of Coffee county stated to the affiant that the petitioner would have already been lynched, were it not for the fact that the sheriff promised the mob then assembled that if they would "defer" the lynching he would have a special term of court to be immediately called for the purpose of trying petitioner, and that the latter's neck would then be broken. The sheriff further

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