Graham v. State , 141 Ga. 812 ( 1914 )

Fish, C. J.

(After stating the foregoing facts.) This: was a petition for a change of venue under the act of August 21, 1911 (Acts 1911, p. 74), on the ground that there was probability or danger of lynching or other violence being perpetrated upon the petitioner, who was accused of murder. That act undertook to accomplish what the legislature considered a wise purpose. It is the duty of the courts to give it proper effect. It. did not leave the matter of changing venue, on the ground stated, as a mere matter of discretion on the part of the presiding judge, but declared that the judge of the superior court of the circuit in which a crime was alleged to have been committed should be authorized to change the venue for the trial of the ease 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 upon him if carried back, or allowed to remain in the county where the crime is alleged to have been committed. So far the language might be treated as only of authorization; but the act goes further. It declares that if a motion by petition shall be made for a change of venue, the judge shall hear it at chambers at such time and place as he may direct. "And if the evidence submitted' shall reasonably show that there is 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 ljmching.” This is not the language of permission or of discretionary authorization, but is a statutory command, and the legislature emphasized that fact and saw fit to declare that, if it should be reasonably shown that there was a probability or danger of lynching or other violence, "it shall be mandatory” on the judge to change the venue. Kennedy v. State, 141 Ga. 314 (80 S. E. 1012). It is, of course, true that the presiding judge must primarily pass upon the question of fact as to whether it is reasonably shown that there is such danger, and that this court will not reverse his finding upon conflicting evidence unless it is manifestly erroneous. Wilburn v. State, 140 Ga. 138 (78 S. E. 819). But the language of the statute showing the change in the duty of the judge of the superior court on this subject, removing the action from the domain of his discretion, and providing for a speedy review of his finding by this court, did not contemplate that such a review should be merely perfunctory, and that if any citizen or county official would state that he had not heard of any intended lynching, or would express the opinion that he thought there was no danger, this court should, as a matter of course, affirm the judgment. If such is to be the construction placed upon the statute, its efficacy will be destroyed. Probably no application for a change of venue under the act now being considered will ever be made where some good citizens of the county can not be found who can truthfully swear that they do not know of the contemplated or intended lynching and who do not think it likely to occur. This court does not primarily pass upon questions of fact; but if the judge of the superior court violates his duty and manifestly errs in his judgment under the evidence, this court can interfere as matter of law.

While the opinion evidence in this case in conflicting, there is no conflict as to the fact that a mob was formed for the purpose of doing violence to petitioner, and that they hunted for Mm for that purpose. Moreover, the written and verified motion for a change of venue alleged that a lynching was only prevented by a promise on the part of the sheriff to the mob that a special term of the superior court would be called immediately, and that petitioner should be tried at that term and the severest penalty known to the law would be meted out to him. The hearing was had on the day following the making of the petition. The sister of petitioner stated in her affidavit that she had heard.this from several sources. The brother of petitioner made affidavit that the sheriff stated to him that petitioner would have been lynched already were it not for the fact that he promised the mob then assembled “that if they would defer said lynching” the sheriff would cause a special term of the court to be immediately called for the purpose of trying petitioner, “and that his neck would then be broken.” Counsel for the State evidently had due notice of the petition, because he was present at the hearing and opposed it, ’and the order overruling it recites that the motion came on regularly to be heard. An affidavit from the sheriff was introduced in evidence, in opposition to the motion, in which he failed entirely to deny or make any mention of the statements in the motion and in the affidavits of the brother and sister of the petitioner. He did state that during the time of the incarceration of petitioner there had been no effort made by any person to do violence to him, that he had heard no party make any threats of violence or lynching (apparently since the incarceration), and that the consensus of opinion among the people with whom he had talked seemed to be in favor of “letting the law take its course.” Where a direct charge was made that a mob had been formed to lynch petitioner, that the sheriff procured them to “defer” the lynching on the promise of an immediate conviction and that petitioner should be “lawfully hung,” and that the sheriff had stated that petitioner would have been lynched before the petition for change of venue was made but for this promise, the silence of the sheriff and of counsel for the State on this subject is most significant. Here we have evidence, not of opinion, but tending to show the direct fact of a preparation to lynch petitioner, which was deferred on the promise of the sheriff that petitioner should be "lawfully hung;” and this evidence is unanswered. If there was an intention to lynch petitioner, it is not very probable that the persons contemplating such an action would communicate their intentions in advance to the officials. Furthermore, there is evidence that since this arrangement between the sheriff and the mob had been agreed upon, various persons had stated that petitioner should be hung by law or be lynched. It may be said that the sheriff could not make a binding contract of that character. Of course this is true, but the mob seemed to have merely delayed to see whether the agreement of the sheriff would be consummated. The mere fact that no effort was made to break into the jail or do violence to petitioner during the time of his incarceration before the present petition was heard is not sufficient to answer the evidence above stated. The homicide occurred on the night of March 21, at Broxton, and after it petitioner was arrested and carried to jail at Douglas, about 12 miles away. According to the evidence above stated, the sheriff induced the mob to delay action. A special term of court was called very promptly, and was in session on April 6, and apparently the trial was near at hand when this petition was presented. The sheriff could not call the term of court, but one was called 'as he predicted, and the fact that the mob had delayed action during this short time while petitioner was in jail is not sufficient to show that he was in no danger of violence when he should be taken out of jail, especially if he should present a strong defense or if he should be successful in obtaining a less sentence than death.

Under the evidence we think it is manifest that it did reasonably 'appear that there was danger of lynching or violence, and that the rebutting evidence on behalf of the State failed to meet that which was most material on behalf of petitioner. The sheriff not only failed to deny the agreement with the mob that petitioner set up, but he did not even state that the people with whom he had since talked and who were in favor of letting the law take its course were those who had been previously gathered together to lynch petitioner, or that they or any of them had abandoned that purpose permanently and unconditionally. We therefore think that the presiding judge manifestly erred in refusing to grant a change of venue.

Judgment reversed.

All the Justices concur, except- .