State v. Sullivan

• Decision Date: 29 March 1892
• Citation: 14 S.E. 796,110 N.C. 513
• Parties: STATE v. SULLIVAN et al.
• Court: North Carolina Supreme Court

14 S.E. 796

110 N.C. 513

STATE v. SULLIVAN et al.

Supreme Court of North Carolina

March 29, 1892

Appeal form superior court, Iredell county; McIVER, Judge.

J. C Sullivan and others were convicted on a charge of assault and battery, done with a deadly weapon, and appeal. Affirmed.

The other facts fully appear in the following statement by MERRIMON, C.J.:

The indictment charges the defendants with an assault and battery, done with a deadly weapon. After the case was called for trial, but before the trial began, the marshal of the United States in and for the western district of North Carolina served the clerk of the superior court with a paper writing, below set forth, by leaving a copy thereof with him signed by the clerk of the circuit court of the United States at Statesville, in the western district of North Carolina, by his deputy, the clerk being absent. The defendants' counsel caused this paper writing to be read before the court, and "demanded that any further action in the cause by the state court be stayed, considering that this action of the said circuit court gave circuit court jurisdiction in the cause." The solicitor for the state insisted that said writing was of no effect, and did not deprive the state court of jurisdiction. The court denied the motion to stay proceedings, and directed that the trial take place. The defendants "protested," excepted, and pleaded "not guilty." There was a trial and a verdict of guilty, a motion in arrest of judgment, which was denied, and judgment, from which the defendants appealed to this court.

The following is a copy of the paper writing above mentioned "United States of America, Western District of North Carolina: The president of the United States of America, to the marshal of the western district of North Carolina greeting: You are hereby commanded to make known to J. H Hill, clerk of the superior court, that whereas, the defendants J. C. Sullivan, J. H. Ayers, and J. H. McNeely, now in court, have filed their petition before the undersigned, setting forth that a bill of indictment was returned into the superior court of Iredell county by the grand jury at the February term, 1892, of said court, charging said defendants with the offense of an assault and battery upon the person of one James Mitchell; and whereas, the said J. C. Sullivan, J. H. Ayers, and J. H. McNeely show the in their said petition that at the time of the alleged offense they were officers and employes of the United States government, employed by a commission of the collector of internal revenue of the United States for the western district of North Carolina, said Sullivan being a deputy-collector, and the other defendants acting by his authority, and by virtue of such authority did the act complained of; whereas, they have demanded in their said petition the removal of the aforesaid indictment into the circuit court of the United States of America for the western district of North Carolina under section 643 of the Revenue Statutes of the United States: Now, therefore, you are commanded to make known to the said superior court of North Carolina, by the delivering of a copy hereof to the clerk of said court, or by leaving it at his office, that the said cause is hereby removed for trial into the said circuit court of the United States next to be holden for the said district at Statesville on the 3d Monday in April, 1892; and that it is entered on the docket of said circuit court of the United States, and will be proceeded with as a cause originally commenced in said court; and, further, that it is required of said superior court of North Carolina to send to the said circuit court of the United States, distinctly and plainly under the seal of said superior court, a transcript of the record and proceedings in said cause in that case in that court, with all the things touching the same, by whatever name the parties may be called, so that we may have them before the judges of our said circuit court of the United States, at the time and place aforesaid, to-wit, at Statesville, on the 3d Monday in April, 1892; and, further, to do therefor what of right we shall see fit to be done. Herein fail not, and have you then and there this writ. Witness the Honorable MELVILLE W. FULLER, Chief Justice of the United States, at Statesville in said district, this, the 12th day of February, 1892, and in the 116th year of the Independence of the United States. [Signed] H. C. COWLES, Clerk. By H. V. FURCHES, Deputy-Clerk. A true copy. Teste: [Signed] H. C. COWLES. By H. V. FURCHES, Deputy-Clerk."

The Attorney General, for the State.

MERRIMON, C.J., (after stating the facts.)

The statute (Rev. St. U.S. § 643) provides that "when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, *** the said suit or prosecution may, at any time before the trial or final hearing thereof be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution, and be verified by affidavit; and, together with a certificate signed by an attorney or counselor at law of some court of record of the state where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him, and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said circuit court, if in session, or, if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon 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. When the suit is commenced in the state court by summons, subp na, petition, or another process except capias, the clerk of the circuit court shall issue a writ ofcertiorari to the state court, requiring it to send to the circuit court the record and proceedings in the cause. When it is commenced by capias, or by any other similar form of proceeding by which an arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court, or left at his office, by the marshal of the district, or his deputy, or by some person duly authorized thereto, and thereupon it shall be the duty of the state court to stay all further proceedings in the cause; and the suit or prosecution, upon delivery of such process or leaving the same as aforesaid, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the state court shall be void," etc. The purpose of this...