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ROBINSON v. THE STATE.
34112.
Change of venue, etc.; from DeKalb Superior Court-- Judge Vaughn. February 14, 1952.
TOWNSEND, J.
1. On a motion to disqualify two superior court judges and the solicitor-general from participation in the case, which motion does not allege that any of these officials are pecuniarily interested in the outcome of the case or are related to any party within the prohibited degree, it is not error to sustain a general demurrer thereto.
2. Where a written motion for change of venue is filed in a case, and an answer thereto is filed within 48 hours thereafter, although the filing of such answer is not required under the provisions of Code 27-1201 relating. thereto, it is no ground for striking such answer that the same was filed too late.
3. Assignments of error on the exclusion of documentary evidence, the provisions of which are not set forth in substance or as an exhibit, will not be considered.
4. (a) A challenge to the array of traverse jurors at a term of court which has since expired, which jurors did not participate in the trial of the defendant, is moot and will not be considered by this court.
(b) There is no evidence in the record here that the grand jurors by whom the defendant was indicted were improperly selected by the jury commission.
5. (a) A petition for change of venue upon the ground that an impartial jury cannot be obtained in the county where the crime is alleged to have been committed is not subject to direct bill of exceptions.
(b) A petition for change of venue on the ground that there is probability or danger of lynching or other violence presents a question of fact upon which the presiding judge must primarily pass, and where the evidence is conflicting and no abuse of discretion is shown, his judgment will not be reversed.
Aaron Robinson, a Negro, was indicted in the Superior Court of DeKalb County for rape, and the case was called for trial before Hon. Frank Guess, judge of that court, on September 11, 1951, at which time the defendant moved to quash the indictment on the ground that no Negroes were represented among the names in the jury box from which the grand and petit jurors were drawn. The indictment was quashed upon this ground, and the defendant was reindicted at the December term, 1951, and was called up for trial on December 10 before Hon. Clarence Vaughn, also a judge of said court. The defendant at that time filed a written motion to disqualify Hon. Frank Guess and Solicitor-General Roy Leathers, alleging that, on the hearing of the motion in September the solicitor-general had made remarks disparaging to the defendant's counsel, and indicating bias and prejudice toward Negro jurors, and that the judge had also indicated a like prejudice by the statement that such a plea might have been filed at any time in the past 71 years, that a lot of fine colored lawyers and others practicing in the court had never seen fit to raise the question, and he was sorry it came at this time when the jury commissioners of their own violition were endeavoring to place the names of Negroes in the jury boxes, and that in so doing he expressed an opinion which was promulgated through the newspapers circulated in DeKalb County. The defendant further made an oral motion to disqualify Hon. Clarence Vaughn on the ground that the judge is interested in the outcome of the case as shown by his previous actions: (a) in refusing a restraining order sought by defendant's counsel to prevent defendant from being beaten by police officers; (b) in delaying a habeas corpus proceeding; and (c) in overruling a motion by defendant's counsel requesting that they be given protection. Demurrers were filed to these motions on the grounds that they were conclusions of the pleader, that the remarks alleged were not made before any jury impaneled to try the case, and, as to the written motion, that it was irrelevant and not germane to the case now being called for trial. These demurrers were sustained.
The defendant then filed a petition for change of venue, alleging: that prior to the defendant's arrest an armed mob began a campaign of terror among Negro citizens of DeKalb County, brandished shotguns and pistols in the windows and doors of houses; that the law enforcement officers joined forces with the mob; that they rounded up all young Negroes in the community and arrested the defendant; that because of threats to lynch him it was necessary for them to remove him to the Fulton County jail; that he was then slipped back to DeKalb County, beaten and threatened with electrocution and kept incommunicado from his attorneys; and that, if tried and acquitted in DeKalb County, he would immediately be taken out and lynched. The petition further sets out the attack upon the array of jurors made at the September tend which resulted in the quashing of the first indictment; that this received wide newspaper publicity and fanned prejudice and resentment in the community; that, at the December term, although there are 1664 Negro taxpayers (presumably of both sexes) upon the tax records, only 27 Negroes were selected for jury service as opposed to over 500 white jurors; that no Negro served upon the grand jury which indicted him; that, on account of the acts done by the jury commissioners and court officials and a threatened repetition thereof by the solicitor-general, the indictment should be set aside and "the petit jury venire and panel should be quashed, annulled and set aside for the reason that the entire proceeding is null and void."
The State filed demurrers to this petition which were overruled, and also an answer denying the allegations thereof. The court, on a hearing of this issue, denied the motion for change of venue, and error is also assigned on this ruling. The defendant then appealed the case to the Supreme Court which, in a decision rendered April 16, 1952, transferred the case to the Court of Appeals on the ground that it did not have jurisdiction thereof.
App. 777, 781 (41 S. E. 2d, 541); Guest v. Rucker, 77 Ga. App. 696 (1) (49 S. E. 2d, 687). Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from these grounds, is ordinarily not assignable as a ground of disqualification. Riner v. Flanders, 173 Ga. 43 (4) (159 S. E. 693); Tibbs v. City of Atlanta, 125 Ga. 18, 21 (53 S. E. 811); Beavers v. Armistead, 156 Ga. 833 (120 S. E. 526); Long v. State, 25 Ga. App. 22 (1a) (102 S. E. 359); Hendricks v. State, 34 Ga. App. 508 (130 S. E. 539). It is contended that the judges have a pecuniary interest in the result of the case in that they are elected to their respective offices, and that Hon. Frank Guess by his statements was seeking political favor within the county.
The term "pecuniary interest" means a direct pecuniary interest in the result of a particular case. In Beasley v. Burt, 201 Ga. 144, 145 (39 S. E. 2d, 51), it is held that "the liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision." "A judge is not disqualified because he is interested in the question to be decided where he has no direct and immediate interest in the judgment to be pronounced." 30 Am. Jur. 773, par. 57. He must have a "financial interest in the outcome of the cause." Blakeman v. Harwell, 198 Ga. 165 (1b) (31 S. E. 2d, 50). See also Singleton v. City of Valdosta, 197 Ga. 194 (1) (28 S. E. 2d, 759); Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323 (1) (37 S. E. 2d, 322). No such interest here is alleged on the part of any of the officials attacked. As to the solicitor-general, he is necessarily a partisan in the case. 22 R.C.L. 102. In Scott v. State, 53 Ga. App. 61 (185 S. E. 131), it was held that the same degree of judicial nicety does not apply to a solicitor-general as applies to a judge or juror, and the petition here alleges no direct and immediate interest on the part of the solicitor against this defendant such as would disqualify him.
The rulings of Hon. Clarence Vaughn upon which the motion to disqualify is predicated were not themselves assigned as error, so no review of the propriety of his prior rulings in the case can be made here. It is further contended that, under Code 81-1104 forbidding the expression of opinion by the court as to the guilt of the accused, the remarks of Hon. Frank Guess amounted to an expression of opinion, that they were widely circulated in the newspapers, and that, under the decision of Shepherd v. State of Fla., 341 U. S. 50 (71 Sup. Ct. 549), this constituted an expression of opinion to the jury. In that case it was held that a press release by an officer of the court charged with the defendants' custody was "conveyed by the press to the jury," persons called as jurors having testified that they had read such statement. If the defendant is of the opinion that any remarks made by officers of the court might prejudice the jurors, his remedy is to purge the jury on the trial of the case. Commercial City Bank v. Sullivan, 18 Ga. App. 608 (6) (90 S. E. 173). The court did not err in sustaining the general demurrers to the motions to disqualify the judges and solicitor-general.
2. Error is assigned in the bill of exceptions on the ruling of the court allowing the solicitor-general to file a demurrer and answer to the motion for change of venue. The record shows that the motion was filed on December 11 and the demurrer and answer thereto on December 13. The objection is that these pleadings were filed too late, as the court was actually hearing the issues at the time they were offered. Since the demurrer was overruled, any error in allowing the filing thereof was not prejudicial to the defendant, since error, to be harmful, must be accompanied by injury. Harrison v. Hester, 160 Ga. 865 (129 S. E. 528). Code 27-1201 makes no specific provision for the filing of an answer to a petition for change of venue, but does provide for a hearing on the issues; consequently, there being no time set for the filing of an answer to such motion, the defendant cannot complain that the pleading, reducing the contentions of the State to writing and filed within 48 hours, was filed too late. This objection is without merit.
3. The defendant tendered in evidence a certified copy of a petition for injunction filed in the United States District Court by counsel for the defendant with restraining order thereon. It appears from the language used that, although the petition was certified, the order was not, and the court was asked to take judicial notice thereof. An objection on the ground that pleadings filed in another court were not evidence of the facts sought to be proved was sustained. Courts cannot take judicial notice of proceedings and judgments of other courts. Fagan v. Jackson & Orme, 1 Ga. App. 24 (57 S. E. 1052). In any event, the documents sought to be introduced in evidence do not appear in the record, and, where error is assigned on the exclusion of documentary evidence, the substance of which is not set out, such assignment of error is imperfect and will not be considered. Skipper v. Alexander, 172 Ga. 246 (6) (158 S. E. 32); Harper v. Sutherland, 44 Ga. App. 594 (3) (162 S. E. 412); City of LaGrange v. Pounds, 50 Ga. App. 219 (3) (177 S. E. 762).
4. The petition for change of venue also seeks to challenge the array of both grand and petit jurors, on the ground that the figures for DeKalb County (1940 census) show a population of 22,087 white and 3650 Negro citizens, that the jury box contained the names of 27 colored and over 500 white jurors, that no Negroes served on the grand jury which indicted the defendant, and that this constitutes discrimination within the purview of Crumb v. State, 205 Ga. 547 (54 S. E. 2d, 639), wherein it was held that a showing that there were no Negroes on the panel of traverse jurors called to try the defendant, and that there had been no Negroes on the jury list for 30 or 40 years, in a county having a population of approximately 50 percent Negroes, constituted a violation of the constitutional rights of the defendant. Any question as to the array of traverse jurors at the December, 1951, term of court is now moot, since that term of court has expired, and, if the defendant is to be tried in DeKalb County or elsewhere, he will necessarily have to draw from a different panel. As to grand jurors, Code 59-106 provides that the jury commissioners shall "select from the books of the tax receiver upright and intelligent men to serve as jurors . . . They shall select from these a sufficient number, not exceeding two fifths of the whole number, of the most experienced, intelligent and upright men to serve as grand jurors." There was evidence as to a number of qualified Negroes who had not been called for jury service. There was no evidence, however, that these men were among the upper 40 percent of "the most experienced, intelligent and upright men," the selection of which is largely left to the discretion of the jury commission. The proportion of white to colored traverse jurors called, in proportion to the numbers found on the tax digest from which the names are selected resembles that shown by the evidence in the case of Avery v. State, 209 Ga. 116 (70 S. E. 2d, 716), rather than that shown by the evidence in the Crumb case. In the Avery case it was pointed out that the method of choosing the grand and traverse jurors, insofar as is relevant to this proceeding, was properly within the powers of the jury commission under the Constitution and laws of this State, and the court further held as follows: "Jury service is not a right or a privilege, but is a burden which the State summons certain of its citizens to bear, and upon no basis is apportionment of jury duty required by the Constitution, the law, or any decision which we have been able to find." See also Watkins v. State, 199 Ga. 81 (33 S. E. 2d, 325).
5. The petition for change of venue was based on both grounds provided for in Code 27-1201, that is, that an impartial jury cannot be obtained in the county where the crime is alleged to have been committed, and that there is probability or danger of lynching or other violence against the accused if he is tried in that county. As to the first ground, this is not subject to a direct bill of exceptions. Avera v. State, 34 Ga. App. 150 (128 S. E. 587); Brannon v. State, 147 Ga. 499 (1) (94 S. E. 759). However, leave is hereby granted counsel for the accused to file the bill of exceptions herein as exceptions pendente lite in order that this question may ultimately be reviewed if counsel so desire.
(b) As to the probability of lynching or other violence, there is testimony in the record on the part of several witnesses to the effect that a large armed mob came into the community where the crime is alleged to have been committed on the day thereof in search of the defendant for the purpose of lynching him. These witnesses identified a number of persons who were present in this mob. Some of these persons alleged to have been present were merchants in the community; and one of them, in addition to being a merchant, was also a substitute rural mail carrier. The persons thus identified as being present all testified that they were not present and that no such mob ever existed. Other witnesses who were in a position to have known about such a mob had it existed testified that they knew of no such mob. Many witnesses testified that they had heard or seen nothing to indicate that the defendant would be subjected to any mob violence should he be tried in DeKalb County. One of these witnesses was a Negro, who testified that he was an officer of the Association for the Advancement of Colored People; that due to this connection he had made an investigation as to the existence of a mob and the likelihood of mob violence. He testified that he learned of nothing that would indicate its likelihood. As stated in Frazier v. State, 81 Ga. App. 840 (60 S. E. 2d, 253): "On motion for change of venue the presiding judge must primarily pass upon the question of fact as to whether it is reasonably shown that there is danger of mob violence. The reviewing court will not reverse his finding upon conflicting evidence unless the evidence when construed as a whole shows such probability of danger of violence to the defendant as to make it mandatory upon the trial judge to change the venue." See also Butler v. State, 56 Ga. App. 126 (2) (192 S. E. 238).
The judgment of the trial court overruling the petition for change of venue on the ground that there is danger of mob violence is without error. As was hereinbefore pointed out, the judgment of the trial court is not reviewed as to that part of the petition for change of venue which was based on the ground that the defendant could not obtain a fair trial in DeKalb County. The trial court is directed to permit counsel if they so desire to file this bill of exceptions in the office of the clerk as exceptions pendente lite, so that the judgment of the trial court overruling the petition for change of venue on the ground that the defendant cannot obtain a fair trial in DeKalb County may ultimately be reviewed if counsel so desire.
Judgment affirmed with direction. Gardner, P. J., and Carlisle, J., concur.
Roy C. Leathers, Solicitor-General, contra.
Jesse T. Edwards, Bruce B. Edwards, Joe R. Edwards, for plaintiff in error.
DECIDED JUNE 13, 1952 -- REHEARING DENIED JULY 1, 1952.
Saturday May 23 05:10 EDT


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