Johns v. State, 23230.

• Decision Date: 27 May 1933
• Docket Number: No. 23230.,23230.
• Citation: 169 S.E. 688,47 Ga.App. 58
• Parties: JOHNS. v. STATE.
• Court: Georgia Court of Appeals

47 Ga.App. 58

169 S.E. 688

JOHNS.

v.STATE.

No. 23230.

Court of Appeals of Georgia, Division No. 1.

May 27, 1933.

Syllabus by the Court.

1. The fact that certain evidence Introduced by the state was procured by an unlawful search did not make it inadmissible upon the hearing of the motion for a change of venue.

2. Construing the statutes as to change of venue (Ga. L. 1895, p. 70; Ga. L. 1911, p. 74; Michie's Penal Code [1926], § 964) in the light of the' decisions of the Supreme Court of Georgia, this court cannot hold that the trial judge erred In refusing to grant the defendant a change of venue, either because "an impartial jury could not be obtained in the county where the crime was committed, " or because there was "probability or danger of lynching, or other violence."

Error from Superior Court, Charlton County; M. D. Dickerson, Judge.

Royal Johns was indicted for murder, his petition for a change of venue was denied, and he brings error.

Affirmed.

J. D. Braswell, of Folkston, and G. Wilbur Sweat, Harry M. Wilson, and Herbert W. Wilson, ' all of Waycross, for plaintiff in error.

A. B. Spence, Sol. Gen., of Waycross, John S. Gibson, of Douglas, and A. S. McQueen, of Folkston, for the State.

MacINTYRE, Judge.

Royal Johns was Indicted for the crime of murder. He presented a petition to the judge of the superior court of the circuit which embraces the county where the alleged crime was committed. This petition contained two grounds: (1) That the petitioner could not obtain a fair and impartial jury in Charlton county; and (2) that there was a probability or danger of lynching or other violence. After hearing the evidence, the judge refused to grant the change of venue. To this judgment the defendant excepted.

Mrs. Royal Johns, the wife of the defendant, testified in part that on the day the defendant was arrested, Sheriff Sikes and six or seven men, among them a Mr. Stokes, a detective, went to the home of the defendant to make an investigation; that they had double-barrel shotguns and pistols; that they found the defendant sitting in some high grass in a field near the back yard; that they told him to hold up his hands, and that when he raised his hands there was nothing in them; that "they ordered the sheriff to go and get the handcuffs and put on him, and cursed him and told him to put his hands over his head"; that "there were three or four shots at that time"; that the shooting was done by Mr. Stokes or Mr. Thomas; that, after they had arrested and handcuffed and carried him to the car, Mr. Stokes again cursed him; that, when witness was carried to jail, she left all of her belongings, except "only just a few I taken with me"; that Sheriff Sikes carried the children to the defendant's mother; that the house was "fastened up when I left--no one had moved in there since that I know of; and that on the next Thursday night, after she was put in jail, the house and its contents were destroyed by fire.

Oscar Johns, brother of the defendant, testified in part that he was acquainted with the jail in Waycross; that he had broken out of this jail; that the "condemned cell was made of steel"; that "there is only one window in that cell"; that "the window is encased with bars and then sheet-slats on the outside, " and "the door is made of sheet-steel"; and that "I imagine a fellow would have a pretty hard time getting out of that jail."

It appears from the record that both the state and the accused agreed that the defendant was in the cell above described; that Oscar Johns was in jail in Blackshear, Pierce county, Ga.; that Mrs. Royal Johns was in jail at Folkston; and that the defendant, Oscar Johns, and Mrs. Royal Johns were charged with the same offense.

Walter Crews, a brother-in-law of the defendant, testified in part that in the presence of the sheriff, the Detective Stokes said to him, "We got him in the Waycross jail now. * * * I don't expect we will ever get him [defendant] back to Folkston to try him nohow;" that witness had "heard this case talked about a whole lot, " but did not know that he could "just give the name of any certain one, " except Lewis Thrift, who lived in another county; that Lewis Thrift said, "day before yesterday, " "If he is guilty I hope he will get justice, and if he is not guilty I hope he will get justice;" that Buddy Crews said, "I heard a lot, of people say that they were aiming to electrocute Royal Johns for it, " but that he (Buddy Crews) did not think that they had evidence enough to convict him, unless they had some more than he had heard of; that Mr. Strain said that he did not believe they had evidence enough to convict him, unless they had more than he had heard of; and that Strain and Crews lived in Charlton county.

Mathew Williams testified in part that he "heard it talked that they thought Royal Johns ought to be lynched, " but that he "just heard it talked around, " and did not know who said it; that he heard people in Charlton county "around the neighborhood talking it." Here the court propounded this question to the witness: "Who did you hear say that?" The witness replied: "Why, I don't know; I heard some talk of it right here in town. Oh, I couldn't say who I heard say it here. No, I wouldn't state that I could name one that said anything about it, that, I had a talk with. What I know about it, I just caught it through others. Yes, it was in a crowd that I heard that statement; other people were talking and I just caught it. Yes, they were Charlton County citizens right here in Folkston. * * * I am not afraid to tell who these parties are--If I was to recollect who it was, I wouldn't mind telling it"

Andrew Strain testified in part that he had heard some "expression" about hanging or lynching the defendant by citizens of Charlton county "a good many times"; that "a heap of them was against the defendant"; that he could not say whether or not the expressions referred to were recent, but that he heard them all along--heard people say that he should be electrocuted--heard people use both expressions, that he shouldbe lynched and should be electrocuted; that he could not say where these statements were made, in whose house or what town, or whether they were made during the day or night; that he could not name a single person who made these statements. This witness concluded his testimony in this language: "From all I have heard about this matter, I wouldn't say that he would get a fair trial, sir, and I wouldn't say that he wouldn't."

Josh Warren testified in part that he heard some of the people in Homeland, Charlton county, say the next morning after the killing that "they ought to lynch Mr. Royal Johns when they caught him"; that this was while Mr. White was a corpse, and that "it was the people that was over there to see Mr. White." This witness further swore that he did not "know how many people were in the crowd" when he heard the statement, but that he thought there were twenty-five or thirty; that he "heard this statement a right smart while Mr. White was there a corpse, " and "heard it a few times since the killing"; that he knew most of the people in Homeland, but could not tell the name of any one who made such statement

Cliff Boddy testified In part: "I haven't heard any talk generally against Royal Johns since the killing, not in Georgia." The witness further testified that on Friday night after the killing on Tuesday he heard Walter Way, who was not a citizen of Georgia, say: "The defendant ought to be lynched, " and that this statement was made at a place eight miles beyond the Georgia line, and about twelve miles from Folkston.

D. J. Parrlsh testified in part that he was arrested as a suspect for the same crime; that he had been in jail in Charlton county; that one or two days after the killing they took him over to the courthouse and told him that "they just wanted me to get up and tell the true facts, if I knowed it; that the evidence was leading towards me, and I would undoubtedly know more, and if I did know more, to tell the truth about it--be honest and tell the truth about-It--that's what they would ask me every time." The witness further swore: "No, sir, they didn't tell me they would lynch me. * * * I said it looked * * * like * * * a lynching mob. They * * * didn't mistreat me at all, only asked me for the truth. They says, 'I will give you till tomorrow night to think-over this thing and get up the true facts.' That is as far as they went They never did tell me about lynching. * * * Some of them, I think, did state that if I didn't tell the truth, they would take me for a ride. The lights went out on the courthouse two or three times that night, flashing around. I got struck in the head there. As to who hit me, the room was crowded and it wasn't really a lick Intended, 1 don't think. No sir. * * * I don't know what caused the lights to go out; there was nobody cut them off. * * *"

The state made a counter showing, introducing twenty witnesses from various sections of the county, all of them testifying substantially that the defendant could get a fair and impartial trial in Charlton county, and that they had heard of no threats of lynching or of violence against the defendant.

Sheriff Sikes further testified in part that Mr. Stokes never told the witness Crews that "perhaps Johns would be lynched, or he couldn't get him here for trial"; that "no such remark was made, or anything that could be construed into it"; that there was no cursing at the time, but that there was cursing back of the house where Mr. Johns was found; that Mr. Thomas and Mr. Johns "passed" a vile oath "back a time or two between them"; that Mr. Johns did not have a gun, but that some of the sheriff's party behind witness did some shooting; that they were trying to make him hold his hands up higher and did not shoot directly at him or try to hit him; that witness was at the courthouse on the night referred to by defendant's witness Parrish; that "it was raining, there was...