State v. Hall

• Decision Date: 18 December 1906
• Citation: 142 N.C. 710,55 S.E. 806
• Parties: STATE . v. HALL.
• Court: North Carolina Supreme Court

55 S.E. 806

142 N.C. 710

STATE .

v.HALL.

Supreme Court of North Carolina.

Dec. 18, 1906.

Criminal Law—Plea in Bab—Existence op Court.

An alleged plea to the jurisdiction of the court in a criminal case alleging that the court was not lawfully constituted because the Governor was out of the. state at the time he directed the holding of the term and signed the judges' commission was a nullity, since the court could not pass on its own existence as a court.

Appeal from Superior Court, Rowan County; Long, Judge.

George Hall was convicted of conspiring to break and enter the jail of Rowan county with intent to kill Nease Gillespie and others who were confined therein as prisoners, and he appeals. Affirmed.

Before pleading to the indictment and before announcing his readiness for trial, the defendant filed a plea to the jurisdiction of the court, and moved the court not to proceed with the trial, and for the discharge of the defendant. The motion was based upon the affidavit of the defendant which was then filed, and which is in the following words and figures, namely: "The defendant, George Hall, being duly sworn, says: That he is advised and believes and so avers, that this court is without jurisdiction to try him for the offense charged in the bill of indictment That he is informed and believes that this special term of court was ordered and the commission of Hon. B. F. Long, the judge presiding, issued by Robert B. Glenn, purporting to make said order and to issue said commission by virtue of his alleged office as Governor of North Carolina; whereas, affiant is informed and believes said Robert B. Glenn, at the time of making said order and the issuing of said commission, was wholly without authority or warrant of law for so doing, being, as affiant is informed and believes, at said time, to wit, on the 17th day of July, 1906, and for many days prior and subsequent thereto, absent from the state of North Carolina, and actually in the state of New Jersey, and defendant is advised and believes that his said action, while so absent from the state, was wholly without warrant of law, unlawful and void, and that all proceedings thereunder are and have been unlawful and void, and that this court is without lawful constitution or jurisdiction to try this case against affiant, or any other cause. Wherefore defendant demands that he go without day." In support of this motion, defendant introduced Hon. Robert B. Glenn. Governor of North Carolina, who testified as follows: "Q. You are the Governor of the state? A. Yes, sir. Q. I will ask you where you were on the 17th day of July, 1900? A. I was in Atlantic City, N. J. Q. You were absent from the state on the 17th day of July, 1906? A. I was in Atlantic City, N. J., on that day. Q. Governor, did you sign the commission of Judge Long to hold this court? A. I sent a telegram to my private secretary and he signed the commission. I seldom sign commissions. Q. By the State: Did you direct and authorize him to sign it? A. I did. He could not get the Lieutenant Governor, and he applied to me. I got this telegram at Atlantic City, and as it needed attention at once, I ordered the commissioners to hold this special term of court, because I wanted to stop this lynching In North Carolina. This signature [to the commission which was produced by the judge] is my signature, but it is stamped with a rubber stamp. I ordered it on a telegram, and directed my private secretary to give this order and stamp my name. I directed him to order a special term of court commencing August 6, 1906." The commission of Judge Long was then Introduced. It is in the usual form and It is not necessary to set it out in full. The court, in passing on the defendant's plea to the jurisdiction, considered the minutes of the board of county commissioners relating to the special term and those minutes were made a part of the case. They show that a special meeting of the board was called on July 17, 1906, to take action in regard tothe Governor's notice to the chairman that the special term had been ordered for the trial of criminal cases, to begin on August 6, 1900, and continue for one week, and that a grand jury had also been ordered to be drawn and summoned for the term. The board directed that notice of the term be published, and that jurors drawn by them in that meeting be summoned by the sheriff of the county. The defendant objected to the introduction of the minutes. The objection was overruled, and he excepted. The court, upon consideration, overruled the plea to the jurisdiction, and the defendant excepted. There was a verdict of guilty. The defendant moved for a new trial and In arrest of judgment for the same reason which he assigned in support of his plea. The motions were overruled, and he again excepted. Judgment having been entered upon the verdict, the defendant appealed

T. F. Kluttz, for appellant.

The Attorney General and Walter Clark, Jr., for the State.

WALKER, J. (after stating the case). As we view the case there is but one question presented for our decision. When he was called upon to answer the Indictment, the defendant entered what is called a "plea to the jurisdiction of the court, " but, In the formal statement of the grounds of his objection to the further prosecution of the case, he does not, either in fact or in a technical sense, attack the jurisdiction of the court, but he denies its right to proceed against him solely upon the ground that the court was unlawfully called and organized, or, in other words, that It was not a court, never having had any legal existence under the law. Jurisdiction, when applied to courts and speaking generally, consists in the power to hear and determine causes. 12 PI. & Pr. 110. It presupposes always and of course that there is a court to exercise it, for it is not predicable of anything but a lawfully existing tribunal. It relates to the subject-matter of the controversy or to the person, and never is applied to any question touching the existence of the court itself. It is not conferred until the court designated to exercise it has been brought into being according to the mode prescribed by law. The defect here alleged is not that, if the court had been properly called and organized, it would still not have had the necessary jurisdiction of the subject-matter of the prosecution and of the person of the defendant, but that there was no such court as that which pretended to indict and try him. This presents a somewhat different case from an exception to the right of a court, admitted to exist, to try a particular cause. The distinction is clear. Burt v....