Kennedy v. State
| Decision Date | 18 February 1914 |
| Citation | 80 S.E. 1012,141 Ga. 314 |
| Parties | KENNEDY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under the facts of the case, the presiding judge erred in refusing to grant, upon petition, a change of venue.
Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.
Lee Kennedy was indicted for murder, and, from refusal to grant change of venue, he brings error. Reversed.
Lee Kennedy, against whom an indictment for the offense of murder had been returned by the grand jury of Emanuel county presented a petition to the judge of the superior court in the circuit which embraces that county, praying for a change of venue to some other county, on the ground of existing danger of mob violence and lynching of the accused. A hearing was had in chambers, and, in support of the petition, two affidavits were submitted. They were executed on the day when the petition was presented. After consideration of the application and evidence, the judge entered an order refusing to grant the change of venue. A bill of exceptions was sued out, assigning error on this judgment. The petition was verified by O. A. Kennedy. The allegations were to the following effect: Maud Kennedy, the wife of the petitioner was wounded October 25, 1913. On the following day petitioner was arrested for the crime and lodged in the common jail of the county. There were immediate threats to lynch him, and on the night of the 26th a number of infuriated citizens threatened to mob him, and they were prevented from doing so only by the energetic action of the sheriff. In consequence of the inflamed state of the public mind and the danger of his being lynched, the petitioner was, on November 16th, taken to the common jail of Chatham county for safe-keeping and protection, and is still being confined there. On November 20th the wife died, and since her death the public mind of the county has become greatly inflamed against petitioner. An indictment was returned January 13, 1914, charging him with murder. The danger of his being lynched and of mob violence upon him still exists, if he should be brought back to the county for trial.
One of the two affidavits referred to was made by O. A. Kennedy, the brother of the accused, who deposed, in substance, as follows: On October 26, 1913, the day after it was alleged that the accused shot his wife and struck her with a gun, the affiant visited the accused and saw him at his home in Emanuel county. The wife was then living, and continued to live until November 20, 1913. A considerable crowd was gathered at the home of the accused at the time of the visit of the affiant. On that occasion the affiant heard threats on all hands by members of the crowd to lynch the accused because he had shot his wife. These threats were generally made within the presence and hearing of the affiant, although it was known that he was the brother of the accused. On or about November 16, 1913, and before the death of the wife, the accused was, by action of the proper authorities of Emanuel county, removed from the common jail of that county to the common jail of Chatham county, for fear that he would be lynched if his wife should die; and he has ever since been confined in the common jail of Chatham county, for fear that he would be lynched if brought back to Emanuel county. The affiant has been in Emanuel county "off and on" since November 16, 1913. He found the public mind of the county greatly excited and inflamed against the accused. He spent Monday, Tuesday, and Wednesday of the week preceding the applications in Swainsboro, the county site, and in the county, for the purpose of sounding the public sentiment, to ascertain if it would be safe for the accused to be brought back to the county for trial during the succeeding week. He found the public mind still greatly inflamed against the accused, and he found a great majority of those with whom he talked to be of the opinion that it was unsafe and dangerous for the accused to be brought back to that county for trial. The people with whom he talked were residents of the county, and well acquainted with the people and public sentiment of the county. Affiant is of the opinion, from his knowledge of the public sentiment in the county, that the accused would be in danger of lynching or mob violence if he were brought back to that county for trial. He has been informed by the sheriff that the latter was called up by telephone, on October 26, 1913, by persons "preferring" (preparing?) to go to Swainsboro that night to lynch the accused, although his wife was not then dead, and that the accused was then prevented from being lynched or mobbed only by the reply of the sheriff that he had plenty of men and intended to protect the prisoner, and that the mob would have to kill him and his assistants before they would lynch the accused.
The other affidavit, made by William Faircloth, was, in substance, as follows: He was born and reared in Emanuel county, and is well acquainted with the people and public sentiment of the county. On October 26, 1913, the day after the accused is alleged to have shot his wife, the affiant visited him at his home. He found the public mind greatly inflamed against the accused. Some of the crowd gathered at the home of the latter were angry and threatening. On October 26th, before the death of his wife, the accused was taken to the jail at Swainsboro. The affiant was informed by reliable residents of the county on that date, while the affiant was at the home of the accused, that a mob was then being formed to lynch the accused. On or about November 16, 1913, nearly a month after the wife was shot, the accused was removed by the proper authorities of the county from the common jail of Emanuel county to that of Chatham county, for his safety, and for the purpose of preventing his being lynched, and to protect him from mob violence. He was so removed before the death of his wife because of the well-grounded fear that he would be lynched when she died. The affiant has visited the county of Emanuel frequently since October 26, 1913, and was in that county during most of the week when the petition was presented. He sounded public sentiment of the county in regard to the accused. He found the public sentiment still greatly inflamed against the accused, and was advised by reputable citizens of the county that the accused would be in danger of lynching and mob violence if brought back for trial. In the affiant's opinion, founded on thorough and painstaking investigation, the accused will be in danger of mob violence if brought back into the county. The affiant has been informed by the prosecutor in the case that he was afraid that the accused would be subject to mob violence for the offense. The affiant proposed to the prosecutor to permit the accused to submit to a verdict of guilty, with a recommendation to life imprisonment. The prosecutor told the affiant that the former did not want the accused hung, but that he could not consent to the verdict suggested, because of the course he (the prosecutor) took on the night of the day his daughter, the deceased, was shot and the next day, when he appealed to the crowd not to do violence to the accused, but to let the law take its course; and that he feared violence if he consented to such verdict.
Hines & Jordan, of Atlanta, and Chas. S. Claxton, of Wrightsville, for plaintiff in error.
R. Lee Moore, Sol. Gen., of Statesboro, for the State.
The proceeding for change of venue was instituted under the provisions of the act approved August 21, 1911 (Acts 1911, p 74), relating to the change of venue in criminal cases. Prior to the approval of this act, another had been enacted on the same subject (Acts 1895, p. 70). Penal Code, § 964 et seq. In the act of 1895 is it provided that the defendant in any criminal case in the superior court may move by a petition in writing for a change of venue, "whenever in his judgment an impartial jury cannot be obtained in the county where the crime was committed"; and, if, from the evidence...
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