Roach v. State

• Decision Date: 20 January 1965
• Docket Number: No. 2,No. 41054,41054,2
• Citation: 111 Ga.App. 114,140 S.E.2d 919
• Parties: Freddie ROACH v. The STATE
• Court: Georgia Court of Appeals

Page 919

140 S.E.2d 919

111 Ga.App. 114

Freddie ROACH v. The STATE.

No. 41054.

Court of Appeals of Georgia, Division No. 2.

Jan. 20, 1965.

Rehearing Denied Feb. 2, 1965.

Pittman & Kinney, Charles L. Pickell, John T. Avrett, Dalton, for plaintiff in error.

R. L. Vining, Jr., Solicitor Gen., Dalton, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

The defendant was tried for rape. After considering the case for several hours the jury was unable to reach a verdict and the court declared a mistrial on September 29, 1964, and re-set the case for trial on October 5, 1964. On October 2 the defendant filed a motion for change of venue on the grounds that he was unable to get a fair trial by an impartial jury in Whitfield County and that there was a probability or danger of his being lynched or of other violence should he be tried in that county. The defendant also filed a petition for mental examination, which alleged that there was some evidence that he was then insane and at the time of the alleged offense lacked the mental capacity to commit the offense, and that because of lack of funds he was unable to secure medical assistance, and prayed that the court order that he be examined at Milledgeville State Hospital. After hearing evidence the trial court denied both this petition and the motion for change of venue. The defendant assigns error on these judgments.

HELD:

1. The denial of the defendant's petition for change of venue on the ground that a fair and impartial jury cannot be obtained in the county where the crime was committed must, for the reasons stated in Blevins v. State, 108 Ga.App. 738(2), 134 S.E.2d 496, await the trial of the case to be resolved. We cannot say under the record at this early stage of the proceedings that the trial court abused its discretion in refusing the change of venue upon this ground.

2. On the motion for change of venue there was evidence that the newspaper of general circulation in Whitfield County had related the proceedings of the trial that ended in a mistrial, including the testimony of the alleged victim and the records of the defendant's previous convictions, and the fact that there had been an outburst of hand clapping by spectators during the trial. There was evidence that the judge who presided at the trial stated before declaring a mistrial that he had to declare a mistrial because of the feelings of the people. The judge disavowed this statement and explained that he had said that he thought it was best to set the case down for retrial at this time 'because some emotion had been exhibited in the courtroom, and that in order to keep this feeling from rising any more, that it was necessary to go ahead and try the case,' in order to protect the defendant 'as well as to see that justice was obtained without incident and a lot of emotion entered into the trial.' There was evidence that the Sheriff of Whitfield County stated before the mistrial that he was afraid of what might happen to the defendant if he was not given the death sentence by the jury trying the case. The sheriff testified at the hearing that there had been no violence during the trial and he had anticipated none, and there had been no thought of removing the prisoner to another jail to await trial. On the evening before the date set for retrial a rock was thrown through the front window of the house of one of the defendant's counsel, and another large rock was found in the front yard.

The issue for review is whether from the evidence as a matter of law it reasonably appeared that there was a danger of lynching or violence to the defendant. Ga.L.1911, p. 74 (Code § 27-1201); Kennedy v. State, 141 Ga. 314, 80 S.E. 1012; Butler v. State, 26 Ga.App. 435, 106 S.E. 744; Pinkston v. State, 80 Ga.App. 268, 55 S.E.2d 877; Ferguson v. State, 104 Ga.App. 215, 216, 121 S.E.2d 338; Blevins v. State, 108 Ga.App. 738, 134 S.E.2d 496. No case that we have examined, including Balkman v. State, 28 Ga.App. 39, 109 S.E. 925, holding that a change of venue was demanded by the evidence, requires a finding from the evidence in the present case that there was a danger of lynching or violence to the defendant. In this case the evidence authorized the trial court to find that there was not a danger of lynching or violence to the defendant and to overrule the motion for change of venue.

3. From the testimony given at the hearing on the petition for mental examination, and from the fact that counsel have filed no special plea of insanity at the time of the trial (Brown v. State, 215 Ga. 784, 787, 113 S.E.2d 618, we presume that their object was to show that the defendant needed medical assistance to support a defense of insanity at the time of the alleged offense (Carter v. State, 56 Ga. 463, 467; Danforth v. State, 75 Ga. 614; Carr v. State, 96 Ga. 284, 286, 22 S.E. 570; McKethan v. State, 201 Ga. 23, 36, 39 S.E.2d 15; Blackston v. State, 209 Ga. 160, 71 S.E.2d 221).

The right of a person accused of a felony to the aid of counsel at all critical stages of criminal proceedings, before trial, and to prosecute an appeal provided by State law, is fundamental and...