State v. Adams
| Decision Date | 23 March 1938 |
| Docket Number | 1. |
| Parties | STATE v. ADAMS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Graham County; H. Hoyle Sink, Judge.
A. M Adams was convicted of destroying a cartway bridge and hindering the construction of a cartway, and he appeals.
No error.
One who seeks to defend on ground of sovereign immunity must show his authority.
Criminal prosecution tried upon indictment charging the defendant (1) with destroying a cartway bridge, and (2) with hindering the construction of a cartway in Graham county.
The state offered evidence tending to show:
1. Proceeding in the superior court of Graham county, instituted May 7, 1935, to establish cartway over certain lands of the respondents John Teseteskey, Solomon Bird, and the Eastern Band of Cherokee Indians of North Carolina, including tracts 404 and 405 of the Indian lands. Judgment of confirmation in said proceeding, establishing the cartway was entered June 24, 1935. There was no appeal from this judgment.
2. Destruction of cartway bridge by defendant and circumstances under which this was done.
3. It was agreed that the tracts of land on which the bridge was located and over which the cartway was laid out were tracts of Indian lands, and were conveyed to the United States of America, in trust for allotment to the Indians in severalty by deed bearing date July 21, 1925, executed by the Eastern Band of Cherokee Indians of North Carolina pursuant to resolution duly adopted in open council by the members of said band.
In 1934 Congress passed the Wheeler-Howard Act of June 18, 1934, providing that "No land of any Indian reservation created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian." 25 U.S.C.A. § 461.
4. There was no denial of defendant's testimony that he was "Farm Agent of the Cherokee Indian Agency," with duties of "farming and looking after the farm lands of the Reservation."
The jury returned a general verdict of "guilty"; whereupon judgment was rendered that the defendant pay a fine of $25 and the costs incurred.
Defendant appeals, assigning errors, relying principally upon his demurrer to the evidence or motion for judgment of nonsuit under C.S. § 4643.
Charles E. Collett and Raymond T. Nagle, both of Washington, D. C., Julius Martin, II, of Asheville, and Tyre Taylor and Wm. H. Churchwell, both of Washington, D. C., for appellant.
A. A. F. Seawell, Atty. Gen., and Harry McMullan and Emmett C. Willis, Asst. Attys. Gen., for the State.
The first question for decision is whether the state has offered evidence sufficient to show the establishment of a cartway over the lands in question. We agree with the trial court that the proof adduced on the hearing supports the present prosecution. State v. Joyce, 121 N.C. 610, 28 S.E. 366; State v. Witherspoon, 75 N.C. 222.
In the first place, a prima facie presumption of rightful jurisdiction arises from the fact that a court of general jurisdiction has acted in the matter. Downing v. White, 211 N.C. 40, 188 S.E. 815; King v. North Carolina R. Co., 184 N.C. 442, 115 S.E. 172; Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259; Wood v. Sugg, 91 N.C. 93, 49 Am.Rep. 639; Harvey v. Tyler, 69 U.S. 328, 2 Wall. 328, 17 L.Ed. 871; Dean v. Brown, 261 Ky. 593, 88 S.W.2d 298; Horn v. Metzger, 234 Ill. 240, 84 N.E. 893; 15 R.C.L. 884; 34 C.J. 537. There is nothing on the present record to overturn this presumption. It was not necessary that the Secretary of the Interior should appear as a party to the proceeding. 25 U.S.C.A. § 311.
Secondly, it is in evidence that John Teseteskey and Solomon Bird, respondents in the cartway proceeding, were in possession of the Indian lands over which the cartway was laid out, tracts 404 and 405, claiming them as their own. Whether the claim of either was by allotment from the United States, under the trust deed of July 21, 1925, with full power of alienation, does not appear. At any rate, the invalidity of the cartway proceeding is not apparent on the face of the record. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; United States v. Chicago, 48 U.S. 185, 7 How. 185, 12 L.Ed. 660. See latest expression of the Supreme Court of the United States in U.S. v. McGowan, 58 S.Ct. 286, 82 L.Ed. ---.
It is true, the defendant proffered as evidence the opinion of the Circuit Court of Appeals in the case of U.S. v. Colvard, 4 Cir., 89 F.2d 312, dealing with this same cartway, but neither of the parties here was a party there, and the record in that case, upon which the court's opinion was based, is not before us. Hence, under our settled procedure, Newbern v. Hinton, 190 N.C. 108, 129 S.E. 181, the exception cannot be sustained. This was the only evidence offered to rebut the presumption of jurisdiction and its rightful exercise. Townsend v. Townsend, 4 Cold. 70, 44 Tenn. 70, 94 Am.Dec. 185.
Moreover, conceding that the United States in a direct proceeding brought for the purpose might question the validity of this cartway, United States v. Minnesota, 95 F.2d 468, Circuit Court of Appeals, Eighth Circuit, March 12, 1938, if Congress has not disavowed the trust, 25 U.S.C.A. § 461, still it is not perceived upon what footing this could avail the defendant in a collateral attack here. State v. Yoder, 132 N.C. 1111, 44 S.E. 689. The United States is not a party to the prosecution, and the suggested voidableness of the cartway proceeding is no defense to the present action. Non constat that a proceeding, voidable as to some third person, is not to be taken as valid in a criminal prosecution against another. State v. Smith, 100 N.C. 550, 6 S.E. 251.
Only void judgments are subject to collateral attack. Downing v. White, supra; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; King v. North Carolina R. Co., supra.
The second question presented by the appeal is whether the defendant is immune from prosecution as an officer of the United States. The record fails to establish such immunity. Vinson v. O'Berry, 209...
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