Robinson v. State

• Decision Date: 13 June 1952
• Docket Number: No. 34112,No. 2,34112,2
• Citation: 86 Ga.App. 375,71 S.E.2d 677
• Parties: ROBINSON v. STATE
• Court: Georgia Court of Appeals

Page 677

71 S.E.2d 677

86 Ga.App. 375

ROBINSON v. STATE.

No. 34112.

Court of Appeals of Georgia, Division No. 2.

June 13, 1952.

Rehearing Denied July 1, 1952.

Syllabus by the Court.

1. On a motion to disqualify two superior court judges and the solicitor general from participation in the case, which motion does not allege that any of these officials are pecuniarily interested in the outcome of the case or are related to any party within the prohibited degree, it is not error to sustain a general demurrer thereto.

2. Where a written motion for change of venue is filed in a case, and an answer thereto is filed within 48 hours thereafter, although the filing of such answer is not required under the provisions of Code, § 27-1201 relating thereto, it is no ground for striking such answer that the same was filed too late.

3. Assignments of error on the exclusion of documentary evidence, the provisions of which are not set forth in substance or as an exhibit, will not be considered.

4. (a) A challenge to the array of traverse jurors at a term of court which has since expired, which jurors did not participate in the trial of the defendant, is moot and will not be considered by this court.

(b) There is no evidence in the record here that the grand jurors by whom the defendant was indicted were improperly selected by the jury commission.

5. (a) A petition for change of venue upon the ground that an impartial jury cannot be obtained in the county where the crime is alleged to have been committed is not subject to direct bill of exceptions.

(b) A petition for change of venue on the ground that there is probability or danger of lynching or other violence presents a question of fact upon which the presiding judge must primarily pass, and where the evidence is conflicting and no abuse of discretion is shown, his judgment will not be reversed.

Aaron Robinson a Negro, was indicted in the Superior Court of DeKalb County for rape, and the case was called for trial before Hon. Frank Guess, judge of that court, on September 11, 1951, at which time the defendant moved to quash the indictment on the ground that no Negroes were represented among the names in the jury box from which the grand and petit jurors were drawn. The indictment was quashed upon this ground, and the defendant was reindicted at the December term, 1951, and was called up for trial on December 10 before Hon. Clarence Vaughn, also a judge of said court. The defendant at that time filed a written motion to disqualify Hon. Frank Guess and Solicitor-General Roy Leathers, alleging that on the hearing of the motion in September the solicitor-general had made remarks disparaging to the defendant's counsel, and indicating bias and prejudice toward Negro jurors, and that the judge had also indicated a like prejudice by the statement that such a plea might have been filed at any time in the past 71 years, that a lot of fine colored lawyers and others practicing in the court had never seen fit to raise the question, and he was sorry it came at this time when the jury commissioners of their own volition were endeavoring to place the names of Negroes in the jury boxes, and that in so doing he expressed an opinion which was promulgated through the newspapers circulated in DeKalb County. The defendant further made an oral motion to disqualify Hon. Clarence Vaughn on the ground that the judge is interested in the outcome of the case as shown by his previous actions: (a) in refusing a restraining order sought by defendant's counsel to prevent defendant from being beaten by police officers; (b) in delaying a habeas corpus proceedings; and (c) in overruling a motion by defendant's counsel requesting that they be given protection. Demurrers were filed to these motions on the grounds that they were conclusions of the pleader, that the remarks alleged were not made before any jury impaneled to try the case, and, as to the written motion, that it was irrelevant and not germane to the case now being called for trial. These demurrers were sustained.

The defendant then filed a petition for change of venue, alleging: that prior to the defendant's arrest an armed mob began a campaign of terror among Negro citizens of DeKalb County, brandished shotguns and pistols in the windows and doors of houses; that the law enforcement officers joined forces with the mob; that they rounded up all young Negroes in the community and arrested the defendant; that because of threats to lynch him it was necessary for them to remove him to the Fulton County jail; that he was then slipped back to DeKalb County, beaten and threatened with electrocution and kept incommunicado from his attorneys; and that, if tried and acquitted in Dekalb County, he would immediately be taken out and lynched. The petition further sets out the attack upon the array of jurors made at the September term which resulted in the quashing of the first indictment; that this received wide newspaper publicity and fanned prejudice and resentment in the community; that at the December term, although there are 1664 Negro taxpayers (presumably of both sexes) upon the tax records, only 27 Negroes were selected for jury service as opposed to over 500 white jurors; that no Negro served upon the grand jury which indicted him; that, on account of the acts done by the jury commissioners and court officials and a threatened repetition thereof by the solicitor-general, the indictment should be set aside and 'the petit jury venire and panel should be quashed, annulled and set aside for the reason that the entire proceeding is null and void.'

The State filed demurrers to this petition which were overruled, and also an answer denying the allegations thereof. The court, on a hearing of this issue, denied the motion for change of venue, and error is also assigned on this ruling. The defendant then appealed the case to the Supreme Court which, in a decision rendered April 16, 1952, [209 Ga. 48, 70 S.E.2d 514], transferred the case to the Court of Appeals on the ground that it did not have jurisdiction thereof.

Jesse T. Edwards, Valdosta, Bruce B. Edwards, Joe R. Edwards, Atlanta, for plaintiff in error.

Roy C. Leathers, Sol.-Gen., Decatur, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The exceptions to the motions to disqualify the two superior court judges and the solicitor general are first dealt with. Code, § 24-102, providing under what circumstances judges shall be disqualified, specifies only matters in which they have a pecuniary interest or are related within the sixth degree to any party interested in the result of the matter. The statutory grounds named in this section are exhaustive. Smith v. State, 74 Ga.App. 777, 781, 41 S.E.2d 541; Guest v. Rucker, 77 Ga.App. 696(1), 49 S.E.2d 687. Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from these grounds, is ordinarily not assignable as a ground of disqualification. Riner v. Flanders, 173 Ga. 43(4), 159 S.E. 693; Tibbs v. Atlanta, 125 Ga. 18, 21, 53 S.E. 811; Beavers v. Armistead, 156 Ga. 833, 120 S.E. 526; Long v. State, 25 Ga.App. 22(1-a), 102 S.E. 359; Hendricks v. State, 34 Ga.App. 508, 130 S.E. 539. It is contended that the judges have a pecuniary interest in the result of the case in that they are elected to their respective offices, and that Hon. Frank Guess by his statements was seeking political favor within the county.

The term 'pecuniary interest' means a direct pecuniary interest in the result of a particular case. In Beasley v. Burt, 201 Ga. 144, 145, 39 S.E.2d 51, 56, it is held that "the liability or pecuniary gain or relief to the Judge must occur upon the event of the suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision." "A judge is not disqualified because he is interested in the question to be decided, where he has no direct and immediate interest in the judgment to be pronounced." 30 Am.Jur. 773, par. 57. He must have a 'financial interest in the outcome of the cause'. Blakeman v. Harwell, 198 Ga. 165(1-B), 31 S.E.2d 50, 51. See also Singleton v. City of Valdosta, 197 Ga. 194(1), 28 S.E.2d 759; Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323(1), 37 S.E.2d 322. No such interest here is alleged on the part of any of the officials attacked. As to the solicitor-general, he is necessarily a partisan in the case. 22 R.C.L. 102. In Scott v. State, 53 Ga.App. 61, 185 S.E. 131, it was held that the same degree of judicial nicety does not apply to a solicitor-general as applies to a judge or juror, and the petition here alleges no direct and immediate interest on the part of the solicitor against this defendant such as would disqualify him.

The rulings of Hon. Clarence Vaughn upon which the motion to disqualify is predicated were not themselves assigned as error, so no review of the propriety of his prior rulings in the case can be made here. It is further contended that, under Code, § 81-1104 forbidding the expression of opinion by the court as to the guilt of the accused, the remarks of Hon. Frank Guess amounted to an expression of opinion, that they were widely circulated in the newspapers, and that, under the decision of Shepherd v. State of Fla., 341 U.S. 50, 71 S.Ct. 549, 550, 95 L.Ed. 740, this constituted an expression of opinion to the jury. In that case it was held that a press release by an officer of the court charged with the defendants' custody was ...