Kennedy v. State , 141 Ga. 314 ( 1914 )

Atkinson, J.

The proceeding for change of venue was instituted under the provisions of the act approved August 21, 1911 (Acts 1911, p. 74), relating to the change, of venue in criminal cases. Prior to the approval of this act another had been enacted on the same subject (Acts 1895, p. 70). Penal Code § 964 et seq. In the act of 1895 it is provided that the defendant in any criminal case in the superior court may move by a petition in writing for a change of venue, “whenever in his judgment an impartial jury can not be obtained in the county where the crime was committed;” and if, from the evidence submitted, the court shall be satisfied, that an impartial jury can not be obtained to try the ease, the judge shall transfer it for trial to some other county to be selected in a manner specified. It will be noted that the change of venue thus provided for relates only to the obtainment of an impartial jury to try the accused. The act of 1911 is amendatory of that of 1905, and provides for an additional ground for the change of venue in criminal eases. It was so construed in the case of Coleman v. George, 140 Ga. 619 (79 S. E. 543). The amending act, which relates to the new or additional ground for change of venue in criminal cases, is in part as follows: “It shall be lawful for the judge of the superior court of the circuit in which a crime is alleged to have been committed to change the venue for the trial of said case, on his own motion, with or without petition, whenever, in his judgment, the accused party will be lynched, or there is danger of violence being attempted to be committed on said accused, if carried back, or allowed to remain in the county where the crime is alleged to have been committed. And if a motion by petition shall be made by the accused for a change of venue, said judge shall hear the same at chambers, with or without the presence of the accused, at such time and place in the State as he may direct. And' if the evidence submitted shall reasonably show that there is a probability or danger of lynching, or other violence, then it shall be mandatory on said judge to change the venue to such county in the State as, in his judgment, will avoid such lynching.” It thus appears that before amendment the statute looked only to the obtainment of an impartial jury, and that after amendment it also regarded the personal safety of the accused and the orderly enforce-' ment of the law. Why should the legislature provide this additional ground for the change of venue?

It is matter of history and common knowledge, that, in this State as well as elsewhere, lynchings occur, and that the defendant in criminal cases is subject to violence or put in danger of violence. At times the militia has been called out to preserve order, and to protect the accused, so that the trial of a criminal case might proceed. There was at times not only danger of violence to the accused but also danger of collisions between the militia and the people. The use of the military at trials in the courts, the irritation in the public mind, caused by the magnitude or the enormity of the crime, the danger of conflicts, and that the trial would not always proceed in an orderly and lawful manner, or that in enforcing the law the lives of others might be risked or sacrificed, all appealed to the legislative mind; and they determined to enact a remedy which would, as far as practicable, do away with these evils. They were unwilling to leave the law, as it stood before the amendment, to the general determination of the judge as to whether a fair and impartial jury could be obtained. They passed this additional act which provided for a speedy, direct, and effective method of changing the venue of the trial, if the accused would be lynched or if there was danger of violence being attempted to be committed upon him if carried back or allowed to remain in the county where the crime was alleged to have been committed. If administered properly and in the spirit of the act, it would, in a large. measure, avoid the dangers above enumerated. That the remedy provided might be effectual, the legislators, not content to merely say that if the judge of the superior court was of the opinion that a fair trial could not be had he might or should grant a change of venue, declared that, under the conditions mentioned in the amendatory part of the above-quoted act, it should be mandatory on the judge of the superior court to change the venue. This did not merely confer upon him the power or discretionary right, but placed upon him a solemn and mandatory duty. The most casual reading of this law will show the imperative nature’ of the duty placed upon the judge of the superior court if the evidence reasonably shows that there is a probability or danger of lynching or other violence. In the light of this law, how' stands the ease before us ?

If the petition and the affidavits submitted in support thereof do not reasonably show on their face that there is a probability or danger of lynching, or other violence to the accused, then it is difficult to conceive of a case to which the legislative act Would be applicable, and it might be declared at once of no effect. It is useless to argue the question. The reading of the petition and the affidavits presents an unanswerable argument, and' we are unable to perceive how any one can read them and declare that on their face they do not reasonably show a danger of lynching or other violence. It is only necessary to read the legislative declaration, and then read these papers, to shpw beyond peradventure that the presiding judge erred in refusing, upon considering them, without more, to grant the change of venue prayed.

But it is suggested that the judge should have heard counter-affidavits from the side of the State; and that while it is the duty of this court to reverse the judgment, we should send it back for another hearing in order that if there should be any such evidence it may be introduced. There is not the faintest hint in this record that there was any conflict in facts, or that there was any conflicting evidence to be introduced, or that the judge desired to hear or consider any further evidence in order to reach a conclusion. It is contended that it was the duty of the judge to set down the case for a hearing; and, as he did not do so, that this court should remand the case with direction that , such hearing be had. .

It will be noticed, in the excerpt from the act of the legislature, above quoted, that two methods of procedure are provided for. In the first place the judge may of his own motion, and “with or without petition,” grant a change of venue. The second is for a setting down and hearing at chambers. If the judge may grant a change of venue “with or without petition,” then, under the act, he has power to grant the order upon the petition being presented. To say that he has power to grant it, but if he refuses the accused is without remedy, would he to destroy the act. To hold that if he. does erroneously refuse to grant a change of venue upon uncontradicted evidence, and passes a final order to that effect, and the accused excepts, he accomplishes nothing except to get the judge to set down the case for a hearing, possibly with the addition of some other evidence raising more or less conflict, would be of small benefit to the accused, and would little comport with the purpose of this act. This proceeding can not be analogized closely to an injunction proceeding, where the property rights of individuals are concerned, and where the preserving them or holding them in statn qno until a jury trial is a matter of consideration. While some analogy may. be drawn between the two proceedings, they are yet quite dissimilar. The purpose of the act of 1911 was to avoid lynching or other violence, or the danger thereof. It was a provision for greater certainty in upholding the integrity and majesty of law. In providing for the administration of justice the great State of Georgia has declared that it should- be done in a just and impartial way, and that the trial should be removed to another venue whenever it is reasonably shown that there is such danger. It is not a mere matter of judicial discretion, as in the case of an injunction, but a .matter of statutory duty. Where time and opportunity and the circumstances are such that the judge may fairly have a hearing without causing the very danger sought to be prevented, he can do so. But we can not destroy the efficacy of the stern mandate of this act by merely holding that the judge can first refuse a change of venue on uneontradicted evidence showing its necessity, and that the only effect of such refusal, upon exception to this court, is to send the case back on the possibility that he may hear some evidence adverse to the change.

No point was made in the bill of exceptions or the record that the court did not grant a rule- nisi or set the case for a hearing. The exception was that he did pass on the uncontradicted evidence, and ruled wrongly. The exception is not like one to the refusal to grant a rule nisi or the like in ordinary civil cases. The act is one to meet emergencies for the purpose of saving life and insuring a fai}? trial.

The solicitor-general in his brief made a number of statements of facts outside of the record, which can not, of course, be considered.

Upon a careful consideration of the entire matter the majority of the court are of the opinion that the judgment should be reversed, with direction to the presiding judge to grant the ehánge 'of venue. Judgment reversed.

All the Justices concur, except