Opinion
41361, 41362.
ARGUED JUNE 8, 1965.
DECIDED JUNE 15, 1965. REHEARING DENIED JULY 2, 1965.
Change of venue. Mitchell Superior Court. Before Judge Crow.
P. Walter Jones, B. Clarence Mayfield, for plaintiffs in error.
Fred B. Hand, Jr., Solicitor General, contra.
1. (a) A motion for change of venue upon the ground that a fair and impartial jury cannot be obtained in the county for the trial of the defendant must be supported by clear and convincing evidence; it requires more than a preponderance. Determination of this is left to the trial judge and his finding will not be disturbed unless it appears that he has disregarded the evidence. Ordinarily a review of his determination must await the result of the trial.
(b) It is to be presumed that the trial court will provide a defendant a trial in accordance with all constitutional and statutory requirements, thereby affording him a fair trial and due process.
2. The showing required in a motion for change of venue upon the ground that there is probability of lynching or other violence to the defendant or his counsel in the event of a trial in the county where the crime was committed is much less stringent than that on other grounds. If, upon a consideration of all the evidence, a feeling that something untoward is likely to happen is left in the mind of a reasonable man, the motion should be granted. This, too, is for determination by the trial judge, whose judgment on the matter will not be disturbed unless it can be concluded as a matter of law that under the evidence the motion should have been granted.
ARGUED JUNE 8, 1965 — DECIDED JUNE 15, 1965 — REHEARING DENIED JULY 2, 1965.
The defendants were indicted, tried, convicted of murder and sentenced to electrocution. The convictions were affirmed in Davis v. State, 216 Ga. 110 ( 114 S.E.2d 877), and Whitus v. State, 216 Ga. 284 ( 116 S.E.2d 205), certiorari denied, 365 U.S. 831 ( 81 SC 718, 5 L.Ed.2d 708). Applications to the State Board of Pardons and Paroles for commutation of the sentences to life imprisonment were denied. Habeas corpus in their behalf was instituted in the U.S. District Court for the Southern District of Georgia and the application was denied on the ground that the remedy was available in the State courts. The denial of the writ was affirmed in Whitus v. Balkcom, 299 F.2d 844, but reversed in Whitus v. Balkcom, 370 U.S. 728 ( 82 SC 1575, 8 L.Ed.2d 803). The matter again came on for hearing before Judge Scarlet of the district court and, after hearing, the application was dismissed on the grounds that (1) the evidence was sufficient to support the conviction, (2) there was no evidence showing a discrimination in the selection of jurors, and (3) the rights of the defendants to equal protection of the laws had not been violated. That dismissal was reversed in Whitus v. Balkcom, 333 F.2d 496, the court holding that from the record it was clear that there had been a systematic exclusion of Negroes in the selection of the jury, and the State courts were given eight months within which to bring the defendants to trial again. The defendants now seek a change of venue on the grounds that (a) the defendants can not receive a fair and impartial trial in Mitchell County, (b) a trial in Mitchell County will deprive them of due process and (c) they and their counsel are in danger of violence if they are brought to trial again in Mitchell County.
The petitions for change of venue in the two cases were upon the same grounds, were consolidated for hearing and were supported and opposed by the same evidence. In support of the petition defendants introduced an affidavit of P. Walter Jones, counsel appointed by the court to represent them, asserting that at the clemency hearing before the State Board of Pardons and Paroles some 30 to 40 prominent citizens of Mitchell County had appeared to resist it and that Sheriff Maples, now deceased, testified at the hearing that on the day following the alleged murder he had successfully dispersed a crowd that gathered with the assurance that the defendants would be afforded a speedy trial in the courts where justice would be done, and that to insure the safety of the defendants he sent them to different jails outside the county. He also asserted in the affidavit that after the voiding of the convictions by the U.S. Court of Appeals in June, 1964, he received a number of anonymous telephone calls — some at his office in the daytime and some at his home at night — threatening bodily harm to him and his clients in the event the defendants were brought back to Mitchell County for trial. Some calls followed recent publicity attending the approaching retrials of the defendants.
When called for cross examination by the Solicitor General, Mr. Jones testified that he heard Sheriff Maples make the statement before the State Board of Pardons and Paroles about the crowd gathering and its dispersal upon his assurance to them that the defendants would get a speedy trial and that justice would be done, but that he had no further knowledge of that matter. The calls which he had received were all anonymous; no caller identified himself by name or as to where he was from. They had simply said "You better not bring him back down here." His client had written him a letter complaining that he was being denied visitation by relatives, change of clothing, etc. in the Mitchell County jail, but he had no personal knowledge of that.
The State introduced some fourteen witnesses who lived in all sections of Mitchell County. Some held official positions but most of them did not, though they were people of some prominence in their communities. Each of them testified that there was no threat or danger of violence to the defendants and that they would get fair and impartial trials.
An uncle of the deceased testified that he attended the hearing before the State Board of Pardons and Paroles and that the late Sheriff Maples made no statement before it relative to any gathering of two or three hundred people, though he did refer to a statement that he made before the arrest of defendants to the witness and his brother to the effect that the defendants would be apprehended and that justice would be done. He had never at any time heard of any threats of violence against either defendant.
The present sheriff, who had been a deputy at the time of the arrest and subsequent trial of the defendants, testified that the defendants were sent to jails in neighboring counties after their arrest because of a crowded condition that then existed in the jail at Camilla and because the defendants were charged with a serious offense and there was no night and day jailer on duty at the time. He had heard of no threats of violence against either defendant at any time and knew nothing of any crowd or mob of people gathering after the arrest of the defendants. He denied any maltreatment of the defendants as prisoners, saying they were permitted visitors at any time during visiting hours, were permitted to bathe and change clothing if they wished to do it, and were well fed and cared for.
The motions for a change of venue were denied and defendants assign error.
1. (a) "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." Roach v. State, 111 Ga. App. 114 (1) ( 140 S.E.2d 919). And see Johns v. State, 47 Ga. App. 58 ( 169 S.E. 688), where the standard for a showing under this ground is spelled out.
(b) This extends also to the matter of whether a jury will be available meeting the constitutional standards for due process. The officers of the county, including the judge and the solicitor general, are aware of the constitutional and statutory requirements for the selecting of persons whose names are to be placed in the jury box and for the drawing of juries. Allen v. State, 110 Ga. App. 56 ( 137 S.E.2d 711); Blevins v. State, 220 Ga. 720 (3, 4) ( 141 S.E.2d 426). We must assume that they will, in all respects, follow the mandate of the law and perform their full duty in affording the defendants a fair trial with due process and equal protection. Georgia Cas. Co. v. McRitchie, 45 Ga. App. 697 (3) ( 166 S.E. 49); Clements v. Hollingsworth, 202 Ga. 684 (4a) ( 44 S.E.2d 381). Indeed, failure on their part to do so would be an exercise in futility, for any conviction obtained by a trial lacking in the observance of constitutional standards would fall. Cf. Whippler v. Balkcom, 342 F.2d 388.
2. On the question of whether the defendants have made a showing of the likelihood or probability of violence against them or their counsel, we recognize that the requirement for the showing is considerably less stringent than that relative to the matter of whether a fair and impartial jury can be obtained. This, too. is delineated in Johns v. State, 47 Ga. App. 58, 64, supra. If it can be said that when all of the evidence is considered it leaves the mind of a reasonable man with the feeling that something untoward is likely to happen in the event of a trial of the defendants in the county where the crime was committed, the judge ought to move it by granting the motion. Code § 27-1201; Ferguson v. State, 104 Ga. App. 215 ( 121 S.E.2d 338).
The issue is one of fact, and must be left to the judge who hears the evidence, his judgment not to be disturbed unless it appears that he has manifestly violated his duty, Graham v. State, 141 Ga. 812 ( 82 S.E. 282); or, to put it another way as Judge Hall did in Roach v. State, 111 Ga. App. 114 (2), supra, unless "from the evidence as a matter of law it reasonably appeared that there was a danger of lynching or violence to the defendant[s]" or their counsel. We do not think the evidence here demanded that finding. True enough, counsel for the defendants has received anonymous telephone calls of a threatening nature. Because of these he has, in the performance of his duty, asked for a change of venue. He has submitted all of the facts to the court, and these the court has considered, along with other evidence which seems overwhelmingly to have refuted any existence of the probability of danger.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.