State v. Inman

• Citation: 31 S.E.2d 641,224 N.C. 531
• Decision Date: 18 October 1944
• Docket Number: 219.
• Parties: STATE v. INMAN et al.
• Court: United States State Supreme Court of North Carolina

31 S.E.2d 641

224 N.C. 531

STATE v. INMAN et al.

No. 219.

Supreme Court of North Carolina

October 18, 1944

Dewey F. Inman and Russell A. Stark are, and were at all times hereinafter mentioned, enlisted men in the United States Army, serving in the 87th Infantry Division 517th Parachute Infantry, at Camp Mackall in Richmond County. While on a furlough permitting them to go beyond the bounds of the military establishment, they entered Lee County, North Carolina, some fifty miles from Camp Mackall. They are charged with having committed the crimes of rape upon the person of Mrs. Louise Burns and of highway robbery of jewelry and money from the person of the said Burns. Upon the warrant charging these offenses, they were arraigned before the County Recorder's Court of Lee County for a preliminary hearing. At that hearing demand was made for the surrender of the prisoners to the military authorities for trial by court-martial under the Articles of War. The Recorder, sitting as a committing magistrate, conceiving that the matter would be more properly addressed to the Suprior Court, denied the request; and finding probable cause, sent the case on to the Superior Court for trial, remanding the prisoners to jail. Bills of indictment were found in the Superior Court, charging each of the defendants with the crimes of rape and robbery from the person, as above stated.

At the ensuing regular term of the Superior Court of Lee County Judge Walter J. Bone presiding, the prisoners were brought into open court, attended by their counsel. At that time Lt Col. George W. Weeks, JAGD, Staff Judge Advocate of the 87th Infantry Division, made and filed in writing a request for the release of the prisoners to the military authorities:

'State of North Carolina

'Lee County

'In the Superior Court of Lee County

'State

vs.

Dewey Inman

Russell Stark

Request for Release of Military Personnel to Military Authorities.

'Lieutenant Colonel George W. Weeks, Staff Judge Advocate, 87th Infantry Division, under the authority imposed upon him by military law, hereby requests the immediate release of Private Dewey Inman and Private Russell Stark, 517th Parachute Infantry Camp Mackall, North Carolina.

'Whereas, Private Dewey Inman and Private Russell Stark are members of the military service, 517th Parachute Infantry, and have been in the military service prior to the date of the alleged commission of the offense charged and,

'Whereas, Private Dewey Inman and Private Russell Stark are now in confinement in the County Criminal Court of Lee County, charged with rape and,

'Whereas, Private Dewey Inman and Private Russell Stark, members of the military service, Army of the United States, did not plead guilty to the offenses,

'Now, therefore, I, Lieutenant Colonel George W. Weeks, Staff Judge Advocate, 87th Infantry Division, Fort Jackson, South Carolina, pursuant to Title 10, Par. 1546, do request the return to military control of Private Dewey Inman, 517th Parachute Infantry, and Private Russell Stark, 517th Parachute Infantry, members of the military service, Army of the United States, and that they be placed in the custody of Lieutenant Colonel George W. Weeks, Staff Judge Advocate.

'George W. Weeks,

'Lt. Col., J.A.G.D.,

'Staff Judge Advocate,

'87th Infantry Division.'

Judge Bone denied this request.

At the same time, Inman and Stark filed separate pleas to the jurisdiction, of which the following is a copy of the plea of Inman:

'North Carolina

'Lee County

'In the Superior Court

'State v. Dewey F. Inman. Plea to the Jurisdiction.

'The defendant above named, to-wit: Dewey F. Inman before plea and before any trial was entered into in this cause, objects and excepts to the jurisdiction of this Court to further proceed with this matter or to entertain the same in any way, for that:

'1. The alleged offense occurred while a state of war existed between the United States of America, Japan, Germany and other Nations, and the defendant is a member of the Armed Forces of the United States and is a soldier regularly enlisted and drafted in the Army of the United States.

'2. That heretofore the United States by and through its proper constituted authorities have asserted primary jurisdiction of any offense committed by the defendant (and said defendant denies that he is guilty of having committed any offense): and the United States Army through its duly constituted authorities and the Military Authorities of the United States have asserted prior and primary and paramount jurisdiction, and demanded the person of this defendant of the authorities of Lee County, to try and to give him a trial for said alleged offense under Military Law; and for said reason this Court and any Civil Court is without any jurisdiction to hear and determine this action and is without jurisdiction to further proceed with, hear or determine this cause.

'This July 20, 1944.

'Dewey F. Inman,

'by K. R. Hoyle, Attorney.

'Filed July 20th, 1944 at 11:30 A. M.

'E. M. Underwood, Clerk of Superior Court.'

Stark's plea is identical in character.

Thereupon, Judge Bone entered the following order:

'State of North Carolina

'Lee County

'In the Superior Court

'July Term 1944

'The State of North Carolina Vs. Dewey F. Inman and Russell A. Stark, Defendants. Order.

'The defendants, Dewey F. Inman and Russell A. Stark, through their counsel file a written plea to the jurisdiction of this Court, which plea is among the papers in this case and speaks for itself as to its contents. Upon said motion the Court finds that the facts alleged in the first paragraph thereof are true. The Court further finds that no written request has been filed with this Court by the military authorities for the release or surrender of the defendants, and further, that no oral request for such release for surrender has been made by any of the military authorities to the Judge Presiding over the present Term.

'Counsel for the defendants contended that a request was made for the release or surrender of said defendants when the preliminary hearing was held in the County Criminal Court for Lee County, and proposed to offer some evidence in support of such contention. The Court declines to hear such evidence as being of the opinion that is unnecessary to make any find(ing) as to what occurred before the Committing Magistrate at the preliminary hearing, in the absence of any written request having been filed by the military authorities, declines to hear such evidence, and that the defendants except.

'Further, when the present term convened on Monday morning, it was stated to the Court by counsel for the defendants that the military authorities would desire to be heard upon the motion or request for release or surrender of the defendants. Whereupon the Court set Tuesday morning, July the 18th, at 9:30 A. M. as the time for the hearing of such motion or request if the military authorities desired to make such. At said time, to wit: Tuesday morning, July the 18th, at 9:30 A. M., no written request for the release or surrender of the defendants was made by any military authority and no such authority appeared in Court for the purpose of making any such motion or request. Later counsel for the defendants stated that he had communicated with Colonel George W. Weeks at Fort Jackson, South Carolina, Judge Advocate of the 87th Division, United States Army, and that said Army officer having advised him that he had not been prepared to make or file any request for the surrender or release of the defendants on Tuesday morning, July the 18th, but that he would do so on Thursday morning, July the 20th, at or about 9:30 A. M. if such time met the convenience of the Court, and thereupon the Court set said time for the hearing of such motion or request. Upon the time set, neither said Army Officer, nor any other military authority, appeared to make any request orally or to file any written request for the surrender or release of the defendants.

'The Court denies the plea to jurisdiction by the defendants through their counsel and to this ruling the defendants except. The foregoing motion or plea to the jurisdiction was filed before defendants were called upon to plead to the bill of indictment.

'Walter J. Bone, Judge Presiding.'

Thereupon, Inman and Stark again filed separate pleas to the jurisdiction. The following is a copy of the plea of Inman:

'North Carolina

'Lee County

'In the Superior Court

'State v. Dewey F. Inman. Plea to the Jurisdiction.

'The defendant above named, to-wit: Dewey F. Inman before plea to Bill of Indictment in any way; and before any trial was entered into in this cause, objects and excepts to the jurisdiction of this Court to further proceed with this matter, or to entertain jurisdiction of the same in any way, for that:

'1. The alleged offense occurred while a state of war existed between the United States of America, Japan, Germany and other nations, and the defendant is a member of the Armed Forces of the United States, and is a soldier regularly enlisted and drafted in the Army of the United States.

'2. That heretofore the United States by and through its properly constituted authorities have this day in writing asserted paramount primary jurisdiction of any offense committed by the defendant (and said defendant denies that he is guilty of having committed any offense); and the United States Army through its duly constituted authorities and the Military authorities of the United States, have as serted paramount jurisdiction and demanded the custody of the person of this defendant from the Courts and authorities of Lee County, to try, and to give him a trial for said alleged offense by Court-Martial under Military Law; and for...