Johnston v. State

• Decision Date: 11 August 1903
• Citation: Johnston v. State, 118 Ga. 310, 45 S.E. 381 (Ga. 1903)
• Parties: JOHNSTON. v. STATE.
• Court: Georgia Supreme Court

45 S.E. 381

118 Ga. 310

JOHNSTON.

v.STATE.

Supreme Court of Georgia.

Aug. 11, 1903.

CRIMINAL LAW—CHANGE OF VENUE.

1. Upon a change of venue in a criminal case ! the county from which the case is transferred j loses all jurisdiction to try the accused upon the indictment transferred at the time of the change, or any other indictment charging the same offense.

v 1. See Criminal Law, vol. 14, Cent. Dig. § 264.

Candler, J., dissenting.

(Syllabus by the Court.)

Error from Superior Court, Dade County; A. W. Fite, Judge.

J. G. Johnston was convicted of murder, and brings error. Reversed.

B. T. Brock and F. W. Copeland, for plain-tiff in error.

Sam. P. Maddox, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

COBB, J. The grand jury of Dade county returned an indictment against the accused, charging him with the offense of murder. He was placed upon his trial upon this indictment twice in Dade county, and the result in each instance was a mistrial. The venue of the case was then by proper order j changed to Whitfield county, and the accused was there placed upon trial, and the result was again a mistrial. Subsequently, and while the indictment was still pending in Whitfield county, the grand jury of Dade county returned a presentment against the accused, charging him with the offense of murder, the presentment being based upon the same transaction upon which the indictment originating in Dade county and then pending in Whitfield county was founded. When the accused was arraigned in Dade county upon this presentment, he interposed in writing objections in the nature of a plea in abatement to being tried in that county, setting up the facts above detailed, and alleging that by the change of venue the superior court of Dade county was without jurisdiction to try him under any indictment or presentment for the offense charged in the indictment which had been transferred to Whitfield county. Anticipating that the reply to his objections or plea might be that the indictment which had been transferred to Whitfield county was defective because it had been preferred by a grand jury which was drawn from a box prepared by less than a majority of the jury revisers, he expressly in his plea or objections waived any defect or invalidity in the indictment on this or any other ground, and averred his willingness to go to trial upon the indictment as preferred. The court, after hearing evidence, overruled the plea or objections, and the accused was found guilty. The case is here upon a bill of exceptions assigning error upon the judgment overruling the objections in the nature of a plea in abatement and upon the judgment overruling a motion for a new trial.

The power to change the venue in criminal cases is by the Constitution vested in the superior courts, to be exercised in the manner prescribed by law. Civ. Code, § 5875. The law provides that, when the judge of the superior court becomes satis-fled that an impartial jury cannot be obtained in a county, he may change the venue. Pen. Code, § 29. When the venue has been changed by order of the superior court, it is the duty of the clerk of the court of the county from which the case has been transferred to send to the superior court of the county to which the case has been transferred a transcript of the order for the change of venue, the evidence before the court of inquiry, a list of all the witnesses subpoenaed, and all other papers connected with the case. After the transfer the clerk of the court of the county to which the case is sent performs all of the duties required of the clerk in such a case. Id. § 940. If the accused is in custody at the time of the change of venue, by express provision of the law the sheriff of the county from which the prisoner is removed is required to deliver him to the sheriff of the county to which the case has been transferred, and that sheriff is required to take as complete charge of the prisoner as he has of other prisoners in his county. Id. § 1129. It would seem to follow that, if the accused had given bail prior to the change, his bail would be under obligation to produce him in the county to which the case has been transferred; and certainly, if bail was given after the transfer of the case, the condition of the bond would be for his presence and attendance at the superior court of the county to which the case had been transferred. The costs of the trial are, however, to be borne by the county in which the offense was committed. Id. § 1083. It would seem, therefore, that when the change of venue has taken place...