Opinion
46862.
ARGUED JANUARY 6, 1972.
DECIDED JANUARY 20, 1972.
Robbery, etc. Houston Superior Court. Before Judge Hunt.
Joel A. Willis, Jr., for appellant.
R. Avon Buice, District Attorney, for appellee.
1. On review after trial, the denial of a motion for change of venue will not be reversed where it does not in fact appear that the defendant's rights were prejudiced by a trial in the county in which the crime was committed.
2. Proceedings to which no objection was launched at the time and which are not enumerated as error will not be considered by this court.
3. The allowing of demonstrations and experiments to be performed before the jury is largely within the discretion of the trial court. No error appears in denying a delay in the trial for the assembly of materials in order to make a physical demonstration of the methods used in lifting fingerprints.
4. The verdict was amply supported by the evidence.
ARGUED JANUARY 6, 1972 — DECIDED JANUARY 20, 1972.
The defendant was indicted for the offenses of robbery and aggravated assault with intent to rape. The testimony of the prosecutrix was concise and convincing to the effect that at 2:30 p. m. or shortly thereafter the defendant came to her front door and told her that her automobile had a flat tire, which was untrue; that he then forced his way into the house and when she attempted to scream he chocked and threatened her; that he demanded money and she gave him what was in her pocketbook; that he demanded cord, which she said she did not have; took some neckties; forced her, by threats and chocking, to remove her slacks and lie on a bed; exposed his sex organs and lay on top of her, was frightened by noises of children outside; tied her arms and ankles, and left, and that all of this occupied perhaps fifteen minutes. The prosecutrix locked the bedroom door, untied herself, jumped out the window and ran hysterically to the neighbors demanding a telephone. She said at that time that she had been robbed. The neighbor asked if it was a black man as she had just seen one leaving the premises on a small blue bicycle. This man according to these witnesses had on a white coat.
At approximately 2:45 on one of the roads leading from the prosecutrix' home to the center of town a police officer who had known the defendant all his life recognized him riding a small blue and white bicycle; he was wearing a white coat. Ten minutes later this officer heard a police call for a colored suspect wearing a white coat on a small blue bicycle and called in that he had just seen him, identifying the defendant. At about 3:30 defendant was arrested at his home, informed of his right to counsel, and taken directly to police headquarters. At 4:30 he was identified by the prosecutrix from a line-up containing five men. At 5:30 a fingerprint check revealed the defendant's prints on the front door and the inner bedroom doorknob. The only defense evidence introduced was Green's unsworn statement in which he admitted being identified by the police officer but denied going to the home of the prosecutrix, and in addition stated that the accusation was the result of animus because he had been tried for rape of another woman two years before and found not guilty. (The jury was informed at the later presentence hearing that he had been found guilty of burglary and simple assault against a young woman under quite similar circumstances two years before).
1. Immediately after the defendant's arrest on January 25 threats were communicated to county authorities, as a result of which the defendant was moved to the Bibb Count jail where he remained until February 8, his trial being held on February 10. Defendant moved for a change of venue on the hearing of which, immediately preceding the trial, defendant introduced evidence of threatening telephone calls to the sheriff and of two men who came to the jail threatening harm. The motion, which also recited the previous trial and conviction and alleged that because of knowledge of its circumstances by residents of the county the defendant's case would be adversely affected, sought a change of venue on the grounds of fear of lynching, danger of mob violence, and the impossibility of obtaining a fair trial within the county. The grounds concerned with lynching and mob violence are now moot, and there is no showing that the fact that people of both races were in the courtroom in large numbers during the trial caused any emotion or disorder. The petition does not charge difficulty in obtaining a fair and impartial jury, nor, so far as the record shows, was there any difficulty in obtaining a jury satisfactory to both sides, nor any challenge brought against it as finally constituted. The motion is one addressed to the sound discretion of the court, whose judgment will not be reversed in the absence of clear proof of its abuse. "Ordinarily a review of his determination must await the result of the trial." Whitus v. State, 112 Ga. App. 29 (1) ( 143 S.E.2d 649). There is nothing here to indicate that the defendant did not in fact have a fair trial. The motion was properly denied.
2. This court will not consider matters which are not enumerated as error, and particularly so when no objection was made during the course of the trial. Nothing in the record raises any question of the illegality of the line-up procedure, and we comment only that since the defendant was informed of his right to counsel at the time of the arrest, made no showing that he wished to obtain counsel, and was placed in the line-up almost immediately thereafter, we see no indication that he was denied the right of counsel within the meaning of United States v. Wade, 388 U.S. 218 ( 87 SC 1926, 18 L.Ed.2d 1149).
3. There was no error in overruling the defendant's motion for mistrial based on a witness' statement that the fingerprints lifted from the prosecutrix' home were compared with others taken from the defendant in the Bibb County jail. This defendant had been transferred to the Bibb County jail for his own protection shortly after his arrest. If this was not already clear to the jury, the fact could easily have been elicited from the witness by defendant's counsel. Nor was it error to refuse to delay the trial in order to obtain equipment for a physical demonstration to the jury of methods used by the witness in lifting and identifying fingerprints. Even when experiments have in fact been made, admissibility of evidence regarding them is largely within the discretion of the court. Bell v. State, 164 Ga. 292 ( 138 S.E. 238). The rule is similar as to demonstrations and experiments sought to be performed before the jury, and in the absence of a showing of the materiality of the proffered material and its importance within the framework of the trial or other facts amounting to an abuse of discretion, this court will not interfere. Cf. Howard v. Montezuma Fertilizer Co., 34 Ga. App. 411 (5) ( 130 S.E. 72).
Judgment affirmed. Jordan, P. J., and Clark, J., concur.