United States v. Powell

• Citation: 65 N.C. 709,27 F.Cas. 605
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1871
• Parties: UNITED STATES v. POWELL.

65 N.C. 709

27 F.Cas. 605

UNITED STATES

v.POWELL.

Circuit Court, D. North Carolina.

June Term, 1871.

Indictment of Amos S. C. Powell for accepting the office of sheriff when disqualified from holding office by the 14th amendment to the constitution of the United States.

This was an indictment under the 15th section of the act of congress of the 31st May, 1870, entitled ‘An act to enforce the rights of citizens of the United States to vote in the several states of this Union and for other purposes.'¹ The indictment charged that the defendant knowingly accepted and held office under the state of North Carolina, to which he was ineligible under the provisions of the 3d section of the 14th amendment of the constitution of the United States. A witness, in behalf of the prosecution, testified that the defendant, prior to the commencement of the late Rebellion, held and exercised the duties of the office of constable, in Sampson county, to which office it was shown, by the records of the court of Sampson county, the defendant had been first appointed by the county court, upon a failure to elect by the people, and subsequently was elected by the people as the law provided; and in both instances qualified by taking the oaths required by law. Another witness, in behalf of the government, testified that in 1863 he (the witness) was a captain and was recruiting a company for the Confederate service, at Wilmington; that defendant came to him, and proposed to enlist in his company, provided he would accept a substitute, and relieve him from duty; that the defendant did enlist in the service, and tendered a substitute, as agreed upon, and, therefore, he granted to the defendant a certificate of exemption, as provided by a Confederate law. The prosecution further proved that the defendant applied for and received the appointment of justice of the peace for Sampson county in 1863, and qual find as such; that he had been elected sheriff of Sampson county in the year 1868, and qualified, and continued to perform the duties of the sheriff up to the present time.

The defendant offered a witness to prove that after the passage of the conscript laws by the Confederate government, and when the authorities had commenced to enforce the same, he was notified by the conscript officer, in his county, that he would be required to perform such service; that a day and place had been fixed for the meeting of conscripts, and he had been notified to attend; that he became alarmed, being averse to such service, volunteered to enable him to offer the substitute, and thereby obtain exemption for himself.

This evidence was objected to by the prosecution as irrelevant, but was admitted by the court.

The defendant offered further to prove by witnesses, who lived in the same county, and near him during the Rebellion, and with whom he frequently conversed during the time the conscript law was being enforced in this county, and about the time the substitute was furnished by him, that he was opposed to the Rebellion, and his opposition to serving in the army. This was also objected to by the prosecution, but was received by the court.

The counsel appearing for the government asked the court to instruct the jury that the office of constable before the war was such an office as rendered those who had held it, and thereafter engaged in the Rebellion, ineligible to any office now, by the provisions of the 3d section of the 14th amendment, unless relieved, as that amendment provides.

The counsel for the government further asked the court to instruct the jury that if the defendant had before the Rebellion so held the office of constable, and thereafter volunteered, though he offered a substitute, and did no actual military service himself, and though his purpose may have been to avoid the service, that he engaged in the rebel service within the meaning of the constitution; and further asked the court to instruct the jury that if the defendant (having been constable as aforesaid) accepted the office of justice of the peace under the rebel government of North Carolina, though he may have performed no duty as justice promotive of the Confederate cause, that the acceptance of the office, and taking the oath required of such office, was such aid or engaging in service of the enemies of the United States as disqualified him from holding the office of sheriff, without the relief required by law.

Dist. Atty. Starbuck and Bragg & Strong, for...