Hubbard v. State

• Decision Date: 10 October 1951
• Docket Number: No. 17584,17584
• Citation: Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (Ga. 1951)
• Parties: HUBBARD v. STATE.
• Court: Georgia Supreme Court

Page 562

67 S.E.2d 562

208 Ga. 472

HUBBARD v. STATE.

No. 17584.

Supreme Court of Georgia.

Oct. 10, 1951.

Rehearing Denied Nov. 16, 1951.

Syllabus by the Court.

1. A defendant in a criminal case is not entitled to a direct bill of exceptions to a judgment denying a motion for change of venue on the ground that he cannot obtain a fair trial in the county where the case is then pending.

2. The judgment of the court below denying a new trial was not error for any of the reasons assigned.

Neal Hubbard was indicted in Wilkes County, Georgia, for murder. Upon the call of the case, and before arraignment and pleading to the indictment, the defendant filed a motion for change of venue on the ground that he could not obtain a fair trial in Wilkes County. The motion was overruled, and the defendant asked for a continuance of six days in which to file a direct bill of exceptions to the order overruling the motion for change of venue. This motion was also denied, and the defendant filed exceptions pendente lite to this ruling. The defendant then tendered to the court a direct bill of exceptions, providing therein for a supersedeas, to the ruling of the court, which the judge of the court below refused to sign. The defendant filed exceptions pendente lite to the refusal of the judge to sign the bill of exceptions. The case then proceeded to trial, and the defendant was found guilty with a recommendation to mercy. The defendant made a motion for new trial on the usual general grounds and amended by adding several special grounds. The motion for new trial was duly overruled. The exceptions here are to the judgment of the court below on the exceptions pendente lite and to the judgment denying a new trial.

Lawson E. Thompson, Washington, for plaintiff in error.

J. Cecil Davis, Sol. Gen., Warrenton, Eugene Cook, Atty. Gen., H. Grady Simmons, Asst. Atty. Gen., for defendant in error.

WYATT, Justice.

1. Plaintiff in error does not in his brief argue the general grounds. We therefore deem it sufficient to say that the evidence was sufficient to authorize the verdict.

2. The exceptions pendente lite raise the question whether or not a defendant in a criminal case who asks for a change of venue, on the ground that he cannot obtain a fair trial in the county where the case is then pending, is entitled to a direct bill of exceptions before the trial of the case to a judgment denying the motion for change of venue. This question has been decided adversely to the contentions of the plaintiff in error in at least two unanimous decisions of this Court. See Coleman v. George, 140 Ga. 619, 79 S.E. 543; Anderson v. State, 190 Ga. 455, 9 S.E.2d 642. We are asked, however, to review and overruled those decisions. We have examined the rulings complained of in the above-cited decisions, and believe them to be sound. The request to overrule them is accordingly denied.

3. Special ground one of the amended motion for new trial contends that the State failed to prove the venue of the alleged crime. The only evidence directly tending to establish venue was a statement by a witness for the State, who testified: 'Where he got cut was here in Washington.' Other circumstances relied upon to prove venue were that the deceased was treated for his wounds in the hospital in Washington. In that connection a doctor testified that he practiced in Wilkes County, and that he treated the deceased in the hospital in Washington on the night he was killed. The defendant was arrested in Washington.

In Davis v. State, 66 Ga.App. 214, 17 S.E.2d 554, it was held: 'While proof 'that an offense was committed in a designated municipality is not in itself sufficient to show venue in any particular county of this State' * * * yet where the witness testified, during the trial of the defendant on a charge of bigamy alleged to have taken place in DeKalb County, Georgia, that 'I married her (the defendant) here at Decatur * * * here in Decatur, out here at Guy Chambers,' the designation of the municipality of Decatur as the place where the offense occurred was sufficient to show venue, since the evidence was sufficient to show that the municipality in question was that of the site of the County of DeKalb where its superior court was in session and was trying the defendant, and since this court will take judicial notice that Decatur is the site of the County of DeKalb, that Decatur is wholly within the County of DeKalb, and that DeKalb County is within the State of Georgia.' The instant case is indistinguishable on its facts from Davis v. State, supra. The witness in the instant case testified: 'Where he got cut was here in Washington.' We will take judicial notice that Washington is the site of Wilkes County; that Washington is wholly within Wilkes County, and that Wilkes County is in the State of Georgia. For this reason, and for the further reason that all the evidence strongly tended to show that the crime was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, we hold that the venue was satisfactorily established under the facts in this case. See Womble v. State, 107 Ga. 666, 33 S.E. 630; Dickerson v. State, 186 Ga. 557, 199 S.E. 142; Campbell v. State, 202 Ga. 705, 44 S.E.2d 903. There is no merit in this ground of the motion for new trial.

4. The second ground of the amended motion for new trial contends that the court erred in refusing to declare a mistrial, for the reason that the State put the defendant's character in evidence when he had not done so himself. The...