{
  "id": 8616138,
  "name": "STATE v. ARTHUR MONTAGUE",
  "name_abbreviation": "State v. Montague",
  "decision_date": "1925-12-23",
  "docket_number": "",
  "first_page": "841",
  "last_page": "843",
  "citations": [
    {
      "type": "official",
      "cite": "190 N.C. 841"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "175 N. C., 809",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8662893
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/175/0809-01"
      ]
    }
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  "last_updated": "2023-07-14T22:38:29.672014+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. ARTHUR MONTAGUE."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.,\nThe principal exception appearing on the record is the one addressed to the ruling of the court on the defendant\u2019s plea to the jurisdiction or the legal authority of the presiding judge to hear the case. Tbe reasons assigned by the defendant for this position appear in his written motion, filed with the trial court, and are as follows:\n\u201cThat under section 11, Article IY, of the Constitution of North Carolina, this court and the judge thereof has no right, power or jurisdiction to take cognizance of or try this cause and the grand jury empaneled had no right, power or jurisdiction to find said bill of indictment at this special term of Burke Superior Court held under commission of the Governor of this State for the reason that Honorable A. M. Stack, judge of the Thirteenth Judicial District, now holding and riding the courts of the Sixteenth Judicial District and the judge assigned to the said Sixteenth Judicial District, under said section and article, is not \u2018unable to preside\u2019 by I\u2019eason of \u2018protracted illness\u2019 or by reason of \u2018any other unavoidable accident to him,\u2019 or by reason of \u2018sickness, disability, or other cause\u2019 within the meaning of said section-and article, and for that, on the contrary, the said Honorable A. M. Stack is, at present and during this week and on the day this motion is made, in health and vigor, holding and presiding over the Superior Court of Catawba County, at the regular May term of said court, which said Superior Court of Catawba County is one of the courts of the Sixteenth Judicial District. Wherefore, prisoner prays that his challenge to the jurisdiction of the court be sustained and that this court proceed no further in the trial of this cause.\u201d\nUpon the defendant\u2019s challenge to the jurisdiction of the court, and motion to proceed no further with the trial of the cause, the judge entered of record the following findings and judgment:\n\u201cUpon the foregoing motion and challenge, the court finds as facts that the same was made and entered by the prisoner after the return of the bill of indictment as a \u2018true bill\u2019 and after the prisoner, without objection or exception, had been arraigned and had entered his plea of \u2018not guilty,\u2019 said motion and challenge being made and entered immediately prior to the time when the petit jury, which is chosen, sworn and empaneled to try the prisoner, was chosen, sworn and empaneled. The court further finds as facts that the Honorable A. M. Stack,-judge of the-Thirteenth Judicial District and the judge regularly riding, holding and assigned to the courts of the Sixteenth Judicial District, is now, at the time of said motion and challenge, in possession of his health, strength and vigor and is, at present and during the present week when this cause is called and tried, engaged in presiding over and holding the regular May Term, 1925, of the Superior Court of Cawtaba County, at Newton, in said county, which forms a part of the -Sixteenth Judicial District, and by reason of the fact-that said term of the Superior Court of Catawba County is in session as aforesaid is unavailable to bold and preside over this special term of the Superior Court of Burke County. The court further finds as facts that the undersigned judge, the regular judge of the Fifth Judicial District and the judge regularly assigned to hold the courts of the Eighth Judicial District, was assigned by the Governor of North Carolina to hold and preside over the May Special Term, 1925, of the Superior Court of Burke County, which was called by the Governor of North Carolina as set forth in the commission of the Governor calling the same and which is convened and held at the courthouse in Burke County after the notice and advertisement required by statute, and that at said time and for said week, there was no emergency judge available to hold said court.\n\u201cIJpon the foregoing motion and challenge and findings of fact, the prayer, motion and challenge of the prisoner is overruled and denied and the trial of the cause is proceeded with.\nA\u00edbioN DuNN, Judge. Presiding.\u201d\nThe judge was really under no obligation to find the facts set out in this judgment. He held a valid commission from the Governor and that was quite sufficient for him. Chemical Co. v. Turner, ante, 471, and cases there cited.\nThe defendant concedes that his challenge to the jurisdiction and authority of the court to hear his case, under the circumstances disclosed by the judge\u2019s findings, cannot be sustained unless we overrule a number of decisions on the subject. S. v. Wood, 175 N. C., 809, and authorities there collected. As to these cases, however, the defendant respectfully says that they are in conflict with Article IY, section 11, of the Constitution. We are unable to agree with this position. The defendant\u2019s exception is not well taken. The reasons in support of the decisions heretofore rendered in similar cases, and which must be followed now, are fully set forth in WooTs case and we deem it unnecessary to repeat them here.\nThe prisoner\u2019s case is of supreme importance to him, and we have given the record a careful and searching scrutiny, but nothing has been discovered by us which apparently calls for any extended discussion. It would serve no useful purpose, so far as the law is concerned, \u201cto thrash over old straw,\u201d even though the case be a capital one.\nWe have carefully examined the remaining exceptions. None of them can be sustaind. The verdict and judgment will be upheld.\nNo error.",
        "type": "majority",
        "author": "Stacy, C. J.,"
      }
    ],
    "attorneys": [
      "Attorney-General Brummiit and Assistant Attorney-General Nash for the State.",
      "Spainhour & Mull, 8. J. Ervin and 8. J. Ervin, Jr., for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ARTHUR MONTAGUE.\n(Filed 23 December, 1925.)\nCourts \u2014 Jurisdiction\u2014Constitutional Daw \u2014 Special Terms \u2014 Judge Appointed \u2014 Judge of District \u2014 Criminal Daw \u2014 Capital Felony.\nObjection by the defendant charged with a capital felony to the authority of the judge assigned by the Governor of the State to hold a special term of the Superior Court, upon the ground that the judge assigned to hold the courts of the district was in good health, and holding a term of the court in another county within the district, cannot be sustained as repugnant to or unauthorized by our State Constitution, Art. IV, sec. II.\nAppeal by defendant from Dunn, J., at May Special Term, 1925, of Bukice.\nCriminal prosecution tried upon an indictment charging the defendant with rape, a capital felony.\nFrom an adverse verdict and statutory judgment of death pronounced thereon, the defendant appeals.\nAttorney-General Brummiit and Assistant Attorney-General Nash for the State.\nSpainhour & Mull, 8. J. Ervin and 8. J. Ervin, Jr., for defendant."
  },
  "file_name": "0841-01",
  "first_page_order": 945,
  "last_page_order": 947
}