Butler v. State

MacIntyre, J.

1. The plaintiff in error filed a motion for a change of venue, on two grounds: “(1) That he ivas in danger of being lynched or some other violence done to him. (2) That he could not obtain a fair and impartial trial and a fair and impartial jury to try the case.” The evidence introduced at the hearing by the plaintiff in error, if accepted by the trial judge, would have amply sustained the motion asking for a change of venue. However, the State introduced evidence which, i£ believed, refuted every ground set out in the motion. Hence the judge was authorized to find that there was not a “probability or danger of lynching, or other violence” (Code, § 27-1201), and that a fair and impártial trial could be had in the county where the crime was alleged to have been committed.

2. “Where the evidence is conflicting upon the issue as to whether or not under the petition such a case is made as requires the judge to grant the motion, the judge hearing the same passes upon the issues that are to be determined upon evidence, and . . his finding and judgment upon the same is final and controlling, unless manifestly erroneous.” Wilburn v. State, 140 Ga. 138, 141 (78 S. E. 819). In the instant case the evidence was conflicting upon all the material issues; and we can not say that it was manifestly erroneous to refuse to grant a change of venue. Johns v. State, 47 Ga. App. 58 (169 S. E. 688); Geer v. State, 54 Ga. App. 216 (187 S. E. 601); Wilson v. State, 28 Ga. App. 574 (112 S. E. 295); Goumas v. State, 44 Ga. App. 210 (160 S. E. 682).

Judgment affirmed.

Broyles, G. J., and Guerry, J., concur.