Bearden v. State

Court of Appeals of Georgia

Bearden v. State

28 S.E.2d 669, 70 Ga. App. 502, 1944 Ga. App. LEXIS 20

CourtCourt of Appeals of Georgia

DecidedJanuary 11, 1944

Docket30397.

StatusPublished

This text of 28 S.E.2d 669 (Bearden v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bearden v. State, 28 S.E.2d 669, 70 Ga. App. 502, 1944 Ga. App. LEXIS 20 (Ga. Ct. App. 1944).

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Opinion

Gardner, J.

It has been many times held that on the trial of a motion for change of venue the judge becomes the trior of the issue to be determined by the evidence introduced, and that his finding thereon will not be disturbed unless his discretion in passing upon the issue, under the evidence, is abused. In Griffin v. State, 59 Ga. App. 333 (1 S. E. 2d, 41), this court, after citing approvingly Broxton v. State, 24 Ga. App. 31 (99 S. E. 635), and Goumas v. State, 44 Ga. App. 210 (160 S. E. 682), said: “It is primarily a question for the judge, upon the hearing of such petition, to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous.”

It is contended by counsel for the plaintiff in error that the affidavit of the mayor to the effect that he advised the defendant to leave town because of the'sentiment that had developed against him was uncontradicted by the State, and that this undisputed fact was sufficient to demand a change of venue. In this we disagree with able counsel, when we consider the evidence as a whole. Under the evidence submitted, the judge was authorized to deny the motion for change of venue.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

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Gardner, J.

It has been many times held that on the trial of a motion for change of venue the judge becomes the trior of the issue to be determined by the evidence introduced, and that his finding thereon will not be disturbed unless his discretion in passing upon the issue, under the evidence, is abused. In Griffin v. State, 59 Ga. App. 333 (1 S. E. 2d, 41), this court, after citing approvingly Broxton v. State, 24 Ga. App. 31 (99 S. E. 635), and Goumas v. State, 44 Ga. App. 210 (160 S. E. 682), said: “It is primarily a question for the judge, upon the hearing of such petition, to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous.”

It is contended by counsel for the plaintiff in error that the affidavit of the mayor to the effect that he advised the defendant to leave town because of the'sentiment that had developed against him was uncontradicted by the State, and that this undisputed fact was sufficient to demand a change of venue. In this we disagree with able counsel, when we consider the evidence as a whole. Under the evidence submitted, the judge was authorized to deny the motion for change of venue.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

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28 S.E.2d 669, 70 Ga. App. 502, 1944 Ga. App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bearden-v-state-gactapp-1944.

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