Patterson v. State

• Decision Date: 14 June 1937
• Docket Number: 8 Div. 757
• Parties: PATTERSON v. STATE.
• Court: Alabama Supreme Court

175 So. 371

234 Ala. 342

PATTERSON v. STATE.

8 Div. 757

Supreme Court of Alabama

June 14, 1937

Appeal from Circuit Court, Morgan County; W.W. Callahan, Judge.

Haywood Patterson was convicted of rape, and he appeals.

Affirmed.

Samuel S. Leibowitz and Osmond K. Fraenkel, both of New York City and C.L. Watts of Huntsville, for appellant.

A.A Carmichael, Atty. Gen., and Thos. Seay Lawson, Asst. Atty Gen., for the State.

THOMAS Justice.

The trial and conviction was for the offense of rape.

The appeals on phases of the facts before us are Patterson v. State, 224 Ala. 531, 141 So. 195, 286 U.S. 540, 52 S.Ct. 648, 76 L.Ed. 1278; Powell v. State, 224 Ala. 540, 141 So. 201; Weems & Morris v. State, 224 Ala. 524, 525, 141 So. 215; Patterson v. State, 229 Ala. 270, 156 So. 567; Id., 293 U.S. 554, 55 S.Ct. 347, 79 L.Ed. 656; Norris v. State, 229 Ala. 226, 156 So. 556; Id., 293 U.S. 552, 55 S.Ct. 345, 79 L.Ed. 655.

For convenience, we will follow the order of discussion employed by counsel, of the several questions for decision.

Did the court below err in denying appellant-defendant's petition for removal to the United States District Court, under section 31 of the United States Judicial Code (28 U.S.C.A. § 74) and section 32 of the United States Judicial Code (28 U.S.C.A. § 75)? These statutes are as follows:

"§ 74. (Judicial Code, section 31.) Same; causes against persons denied civil rights. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for removal had been filed. (R.S. § 641; Mar. 3, 1911, c. 231, § 31, 36 Stat. 1096.)"

"§ 75 (Judicial Code, section 32.) Same; petitioner in actual custody of state court. When all the acts necessary for the removal of any suit or prosecution, as provided in section 74 of this title, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshall shall file with or deliver to the clerk of said State court a duplicate copy of said writ. (R.S. § 642; Mar. 3, 1911, c. 231, § 32, 36 Stat. 1097.)"

The provisions for a change of venue in criminal causes, contained in section 5581 of the Code of Alabama of 1923, are as follows: "5581. Removal to nearest county, and but once.--The trial must be removed to the nearest county free from exception, and can be removed but once."

The decisions are that on an application for a change of venue, and on granting the motion for removal, the trial court must decide what is the nearest county free from objection. Ex parte Benj. F. Hodges, 59 Ala. 305. When an order for removal or change of venue is made, the jurisdiction of the county wherein the indictment is returned to try defendant ceases, and the jurisdiction of the county to which the case is removed commences. Ex parte Lancaster, 206 Ala. 60, 89 So. 721, 18 A.L.R. 706. The question then is, under the rules that obtain, has the state court the duty or right to determine the sufficiency of the petition and the facts authorizing removal to another jurisdiction, or change of venue?

In Ex parte State of Alabama, 71 Ala. 363, it is declared that a mere application for removal to a federal court does not oust the state jurisdiction. It is only when the application is in proper form and conforms to the act of Congress, authorizing the removal, and states "facts bringing the case within the provisions of the act" that it becomes the duty of the state court to yield obedience to the paramount law and cease to exercise its original jurisdiction in the premises. In State v. Sullivan, et al., 110 N.C. 513, 14 S.E. 796, the observation is made of the federal statute (Revised Statutes, § 643 [now Jud.Code § 33, as amended, 28 U.S.C.A. § 76]) that the jurisdiction of the state court over the person and the subject-matter enumerated in the Act of Congress is not ousted by the filing of a petition for removal in the circuit court. That result follows only when the petition setting forth the facts required by the statute has been duly filed and the appropriate return has been issued and made known to the state court.

In Ex parte J. Madison Wells et al., 29 Fed.Cas. 633, No. 17,386, 3 Woods, 128, it is said that the state court surely is not forced to shut its eyes and yield to every application that comes to it (for removal). Though removal is a matter of right and not of favor, yet the court must have the right to see whether the application to remove comes within the meaning of the law. This latter reference applies to the right and power of the state court to examine and ascertain the compliance with federal statute. Virginia v. Rives, 100 U.S. 313, 316, 25 L.Ed. 667.

In Virginia v. Paul, 148 U.S. 107, 116, 13 S.Ct. 536, 37 L.Ed. 386, it is recognized that the petition must show a sufficient ground for removal and the case of Virginia v. Rives, supra, is cited. In that decision it is declared if the petition (for removal) filed in the state court before the trial and duly verified by the oaths of the defendants, exhibited a sufficient ground for removal of the prosecutions into the Circuit Court of the United States, "they were in legal effect thus removed, and the writ of habeas corpus was properly issued."

In the case of Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463, 476 (certiorari denied, 295 U.S. 765, 55 S.Ct. 924, 79 L.Ed. 1706) it is said:

"There was no error in denying the defendants' petitions, and in ordering the trial to proceed. It is only when state legislation can be shown to exist which violates the constitutional guaranty of the equal protection of the laws and interferes with a party's right of defence that he can have his cause removed to the federal court under section 31 of the Judicial Code. Virginia v. Rives, 100 U.S. 313, 332, 333, 25 L.Ed. 667; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, 5 Ann.Cas. 692. The mere presentation of a petition for the removal of a criminal cause from the state court to the federal court is not sufficient to arrest the jurisdiction of the state court, and that court still has the right to examine into the sufficiency of the petition. ***

"Furthermore, the formal and orderly process required by section 32 of the Judicial Code, where the state court refuses to recognize the defendant's right to remove the cause, was not complied with. The jurisdiction of the state court is transferred to the federal court only in case the suit is a removable one and the proceedings to remove it are regular enough to be effective. That the proceedings to remove the cause are regular is not sufficient to transfer the jurisdiction from the state court to the federal court."

It follows that the trial...