Pinkston v. State

• Decision Date: 27 October 1949
• Docket Number: No. 32723.,32723.
• Citation: Pinkston v. State, 80 Ga.App. 268, 55 S.E.2d 877 (Ga. App. 1949)
• Court: Georgia Court of Appeals
• Parties: PINKSTON. v. STATE.

55 S.E.2d 877

80 Ga.App. 268

PINKSTON.

v.STATE.

No. 32723.

Court of Appeals of Georgia, Division No. 2.

Oct. 27, 1949.

Joe Pinkston was indicted for the offense of shooting at another and he brought error to the denial of a motion for change of venue by Superior Court for Glascock County, C. J. Perryman, J.

The Court of Appeals, Townsend, J., reversed the judgment holding that although evidence showed impartial jury could be obtained, there was danger of violence to accused where evidence showed threats to defendant's habitation by group of armed men.

Syllabus by the Court.

1.Where, as here, upon the hearing of a motion to change the venue, the evidence greatly preponderates that an impartial jury can be obtained to try the case, it is not an abuse of discretion by the trial court to deny a motion based upon this ground.

2.Upon the hearing of a motion to change the venue upon the ground that there is probability of violence being done the accused, if the evidence submitted reasonably shows that there is probability of such violence, then it is mandatory upon the judge to change the venue to some county where, in his judgment, the accused can be safely tried.Butler v. State, 26 Ga.App. 435, 106 S.E. 744.

Joe Pinkston was indicted at the February term of Glascock Superior Court for the offense of shooting at one J. L. Reese on May 8, 1948.A motion for change of venue was filed by the defendant and, after presentation of evidence and argument, was denied by the trial court.The defendant excepted, and assigns error to this ruling.

J. D. Godfrey, Sandersville, Casey Thigpen, Sandersville, for plaintiff in error.

J. Cecil Davis, Sol.Gen., Warrenton, for defendant in error.

TOWNSEND, Judge.

1.The evidence for the State consists of the testimony of numerous citizens of the county, including the sheriff, the mayor, a member of the grand jury which had indicted Pinkston, a jury reviser, the Chairman of the Board of County Commissioners, and other citizens and residents.These all stated that in their opinion there was no feeling in the county which would lead them to believe that the defendant would not receive a fair trial.

Code, § 27-1201, relating to change of venue, provides in part: "if * * * the court shall be satisfied that an impartial jury cannot be obtained to try the case, the judge shall transfer it to any county that may be agreed upon * * * ".

In the present case there was ample evidence, through the statements and opinions of many of the leading citizens of the county, that an impartial jury could be obtained, and it was therefore no abuse of the court's discretion to refuse a change of venue upon this ground.

2.The evidence for the defendant is embodied in his sworn petition, which was introduced in evidence, and this court will consider this evidence in connection with the records of two previous cases, Pinkston v. State, 78 Ga.App. 91, 50 S.E.2d 645, andPinkston v. State, 79 Ga.App. 762, 54 S.E.2d 343, insofar as reference to these cases is incorporated in the sworn motion for change of venue, and to which no demurrer was interposed.So doing, it appears that on May 8, 1948, Joe Pinkston, a Negro, and J. L. Reese, ayoung white man, brother to Neal Reese and son of Ray Reese, had an altercation, as a result of which J. L. Reese and Pinkston are each alleged to have shot at, but missed, the other; that the father, Ray Reese, was informed of the altercation and drove down to the Negro section, that he took with him the younger son, Neal; that he found J. L. Reese at a house about 75 yards from the defendant's house, that he drove on to the defendant's house, picked up a gun or pistol and tried to force his way into the defendant's house for purposes of revenge, and that the defendant shot and wounded him; that when he got home J. L. Reese took a gun and was going back to kill the defendant, but his father stopped him; that a jury of Glascock County convicted the defendant of assault with intent to murder, which conviction was reversed by this court because the evidence demanded a finding that the defendant had fired in defense of his habitation; that on the same evening the shooting occurred a group of men rode by the defendant's house and fired shots therein; that after the decision of the Court of Appeals in the case pertaining to Ray Reese, 78 Ga.App. 91, 50 S.E.2d 645, his son, Neal Reese, had a warrant sworn out charging the defendant with carrying a pistol without a license on May 8, 1948, and his son J. L. Reese had a...