
    33057.
    FRAZIER v. THE STATE.
    Decided June 7, 1950.
    Rehearing denied June 27, 1950.
    
      J. D. Godfrey, Casey Thigpen, for plaintiff in error.
    
      W. H. Lanier, Solicitor-General, Irwin L. Evans, contra.
    Bernard Frazier Jr. was indicted in the Superior Court of Washington County for the offenses of assault with intent to murder a police officer and for malicious mischief in shooting the tire on the officer’s automobile. The defendant filed a verified motion for change of venue in which he swore that on the occasion in question a policeman, without provocation, commenced to beat and kick him; that the policeman drew a blackjack and pistol on him; that the defendant took these weapons away, shot the tire from the officer’s automobile to prevent pursuit, and fled; that said officer made it a habit to beat up Negroes and without provocation shot a Negro. It is further alleged that soon thereafter the petitioner surrendered to the sheriff of Washington County; that said sheriff advised the defendant’s counsel it would not be safe for the defendant to make bail and return to his home, as he might meet with violence; that there would be great probability or danger of violence to the defendant at the hands of persons unknown on account of high feeling and inflamed public mind against him in Washington County; that before the defendant surrendered, one W. J. Yates came to the defendant’s house looking for him and stated at the time that he was going to kill him; that the defendant will fear for his life and that of his family if he should be tried and acquitted in Washington County; that there exists against him the most intense hatred, prejudice, bitterness and malice; that this feeling is general and possessed by a large number of citizens, and that many false reports have been circulated that he has beat up and attempted to kill a policeman. No other evidence was offered in behalf of the defendant. The State introduced the affidavit of A. W. Smith, sheriff, who deposed that he had heard no threats or rumors nor seen any demonstrations concerning the defendant; that he was perfectly safe; that the only reason the deponent had advised against making bail was that the defendant would have more sympathy if he remained in jail. W. J. Yates deposed by affidavit that he was Chief of Police in Tennille; that he went to the defendant’s home for the purpose of recovering the pistol and apprehending him; that he made no threat whatever against the defendant and did not say he was going to kill him; that he has seen and heard nothing to justify the conclusion that the defendant would be harmed by anyone, either during or after his trial. Ernest Joiner testified that he is a resident of Tennille engaged in the grocery business; that he has heard no threats against the defendant nor anything to indicate that there is any hatred, prejudice, bitterness or malice existing against him. The mayor and two other citizens deposed to the same effect. The trial court overruled the motion for change of venue, and to this judgment the defendant excepted.
   Townsend, J.

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. Nix v. State, 22 Ga. App. 136 (95 S. E. 534); Pinkston v. State, 80 Ga. App. 268 (55 S. E. 2d, 877). The evidence here is not sufficient to require a reversal of the judgment of the trial court denying the motion.

Judgment affirmed.

MacIntyre, P.J., and Gardner, J., concur.  