State v. Williams, 495

• Decision Date: 03 March 1965
• Docket Number: No. 495,495
• Citation: 140 S.E.2d 529,263 N.C. 800
• Court: North Carolina Supreme Court
• Parties: STATE, v. Robert WILLIAMS.

Page 529

140 S.E.2d 529

263 N.C. 800

STATE, v. Robert WILLIAMS.

No. 495.

Supreme Court of North Carolina.

March 3, 1965.

T. W. Bruton, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

T. H. Wyche, W. B. Nivens, Charlotte, Conrad J. Lynn, and Leonard B. Boudin, New York City, for defendant.

PARKER, Justice.

The Attorney General of North Carolina on 3 February 1965 filed in this Court a motion and supporting petition requesting the Court, as stated in the motion, to dismiss defendant's appeal for the reason that the said defendant, Robert Williams, 'has fled the jurisdiction of the Courts of North Carolina and has sought refuge and asylum in Communist Cuba and has become a Communist propaganda agent for the Castro Government of Communist Cuba; that the said defendant Robert Williams, as set forth in the petition hereto annexed, is not entitled to any appeal or consideration by any of the Courts of North Carolina, including this Court,' and requested that this motion be heard on 16 February 1965 by this Court. The Attorney General of North Carolina sent a copy of this motion and supporting petition to defendant's two North Carolina attorneys, T. H. Wyche and W. B. Nivens, who were defendant's attorneys of record when the case was heard on appeal by this Court at the Fall Term 1960, but did not send copies of these papers to Conrad J. Lynn of New York, N. Y., who was associated with Wyche and Nivens in the defense of defendant, and to Leonard B. Boudin of New York, N. Y., who was an attorney of record for defendant in the United States Supreme Court. Wyche and Nivens forwarded to Lynn the papers forwarded to them by the Attorney General, and he in turn notified Boudin of these papers.

The petition attached to the motion was verified by Ralph Moody, Deputy Attorney General of North Carolina. The partinent parts of this verified petition are as follows:

'(3) On information and belief: That defendant Robert Williams on or about Sunday, August 27, 1961, became involved in an incident at Monroe, North Carolina, whereby the said defendant Robert Williams, and his fellow confederates and conspirators, May Mallory, Richard Crowder, Harold Reep, John Cyril Lowry, and many others, kidnaped and held prisoners and as hostages G. Bruce Stegall and his wife Mabel W. Stegall; and of which is shown in a record on file in the Office of the Clerk of the Supreme Court of North Carolina, the same being No. 438, Fall Term, 1964 and entitled STATE OF NORTH CAROLINA v. MAY MALLORY, RICHARD CROWDER, et als; that as shown in the deposition of Robert Williams on page 317 of the above cited record the said Robert Williams fled the jurisdiction of this Court on August 27, 1961, after holding the Stegalls as hostages, and after attempting over the telephone to secure the release of certain colored persons in the Union County jail through the instrumentality of hostages.

'(4) On information and belief: That the said defendant Robert Williams fled to the Nation or Country which is now known as 'Communist Cuba,' which is a nation now governed by a dictator by the name of 'Castro,' who is a mere agent and puppet of the Soviet Government and who granted asylum to the defendant Robert Williams; that the said defendant Robert Williams is now a fugitive from justice and has fled the jurisdiction of the Courts of North Carolina, as well as this Court, and is now a propaganda agent for the Communist dictator Castro; that the said defendant Robert Williams has been monitored in the State of Florida in giving propaganda broadcasts for Communist Cuba, both over radio and television; that the said defendant Robert Williams has also caused propaganda tracts or pamphlets to be circulated in the United States, urging the colored people to engage in guerilla warfare against white persons, and also giving directions for the manufacture of Molotov Cocktails, bombs and other explosives commonly used by guerillas; that the petitioners request this Court to take judicial notice of any information in the files of the State Bureau of Investigation, as well as the files of the Federal Bureau of Investigation, relating to the defendant Robert Williams; that this Court has the power and authority to dismiss said appeal as shown by previous decisions of this Court (STATE v. JACOBS, 107 N.C. 772 ; STATE v. DeVANE, 166 N.C. 281 ; STATE v. DALTON, 185 N.C. 606 ; SAVAGE v. STATE , 174 P.2d 272--Okla.); that it is not a denial of any federal constitutional rights for a state court to dismiss appellate process because the accused has become a fugitive from justice (ALLEN v. GEORGIA, 166 U.S. 138, 41 L. ed. 949, 17 S.Ct. 525; SMITH v. UNITED STATES, 94 U.S. 97, 24 L. ed. 32).'

On 9 February 1965 Conrad J. Lynn, counsel for defendant, filed a verified answer to the Attorney General's petition, in which he does not deny that defendant Robert Williams has fled to Cuba, and is now a propaganda agent for the Communist dictator Castro, and is engaged in the activities in Cuba set forth in the Attorney General's verified petition to dismiss. Lynn's verified answer to the petition states: Defendant, 'an angry, black man, fled to Cuba and proclaims to all and sundry his hatred of the system of segregation prevalent in the southern states, including North Carolina.' Leonard B. Boudin filed a verified answer to the Attorney General's petition to dismiss, but he does not deny that defendant Williams is a fugitive from justice in Cuba and is engaged in the activities there set forth in the verified petition of the Attorney General.

As we understand the majority per curiam opinion of the United States Supreme Court, it vacates the judgment of this Court finding No Error in defendant's trial at the 10 May 1960 Regular Criminal Term of Union County, and remands the case to us for consideration in the light of Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771.

In the verified answer of Conrad J. Lynn, attorney of record for defendant, in reply to the Attorney General's motion to dismiss defendant's appeal, it is stated defendant 'has fled to Cuba,' and consequently he is beyond the jurisdiction of the courts of North Carolina. A deposition of defendant Williams read in evidence for defendant in the trial of State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870 states in part, '* * * I left the country * * *.'

The verified answers of defendant's counsel Conrad J. Lynn and of Leonard B. Boudin do not controvert the allegations in the Attorney General's verified petition that, on information and belief, defendant is in Cuba and is engaged in certain activities there, which are not conducive to the peace, tranquility and welfare of the people of this State and Nation.

It is a fact generally known from the radio, television, and the press that defendant Williams is in Cuba and is engaged in spreading propaganda there to the United States by radio, television and public statements that, to say the least, is not to the best interests of this State and Nation. We take judicial notice of such activity by him 'for justice does not require that courts profess to be more ignorant than the rest of mankind.' State v. Vick, 213 N.C. 235, 195 S.E. 779.

In State v. Jacobs, 107 N.C. 772, 11 S.E. 962, the Court stated: 'In appellate courts, where questions of law only can be reviewed, and in the absence of any statute specifically regulating the procedure, if there be satisfactory evidence that a defendant, whose appeal is founded upon exceptions entered on the trial below, and has been regularly called for hearing, has escaped, and is not in actual or constructive custody, it is clearly within the sound discretion of the courts to determine whether the exceptions shall be argued and passed upon, the appeal dismissed, or the hearing postponed to await the recapture of the alleged defendant. [Citing numerous authorities.] In the exercise of this power, the courts of the different states have not adopted uniform rules of practice, even where there are no statutory or constitutional provisions regulating the mode of procedure. But while the general if not universal rule has been to refuse a motion of a defendant who had absconded, and put himself in contempt of court, to dispose of his appeal, or make any order affecting it at his instance or for his benefit, the courts of the different states have, as a general rule where there was no express statutory requirement in reference to it, and where the prosecuting officer was the moving party, continued, dismissed, or heard the appeal according to the circumstances of the case, or the early precedents of the particular court.'

In State v. Anderson, 111 N.C. 689, 16 S.E. 316, which was a conviction for murder, the Court again affirmed the...