State v. . Adams , 213 N.C. 243 ( 1938 )

Criminal prosecution tried upon indictment charging the defendant (1) with destroying a cartway bridge, and (2) with hindering the construction of a cartway in Graham County.

The State offered evidence tending to show:

1. Proceeding in the Superior Court of Graham County, instituted 7 May, 1935, to establish cartway over certain lands of the respondents, John Teseteskey, Solomon Bird, and the Eastern Band of Cherokee Indians of North Carolina, including Tracts 404 and 405 of the Indian Lands. Judgment of confirmation in said proceeding, establishing the cartway, was entered 24 June, 1935. There was no appeal from this judgment.

2. Destruction of cartway bridge by defendant and circumstances under which this was done.

3. It was agreed that the tracts of land on which the bridge was located and over which the cartway was laid out were tracts of Indian lands, and were conveyed to the United States of America, in trust for allotment to the Indians in severalty, by deed bearing date 21 July, 1925, executed by the Eastern Band of Cherokee Indians of North Carolina pursuant to resolution duly adopted in open council by the members of said band.

In 1934 Congress passed the Wheeler-Howard Act of 18 June, 1934, providing that "No land of any Indian reservation created or set apart by treaty or agreement with the Indians, Act of Congress, executive order, purchase or otherwise shall be allotted in severalty to an Indian." 25 U.S.C.A., sec. 461.

4. There was no denial of defendant's testimony that he was "Farm agent of the Cherokee Indian Agency," with duties of "farming and looking after the farm lands of the reservation."

The jury returned a general verdict of "Guilty"; whereupon judgment was rendered that the defendant pay a fine of $25.00 and the costs incurred.

Defendant appeals, assigning errors, relying principally upon his demurrer to the evidence or motion for judgment of nonsuit under C. S., 4643. The first question for decision is whether the State has offered evidence sufficient to show the establishment of a cartway over the lands in question. We agree with the trial court that the proof adduced on the hearing supports the present prosecution. S. v. Joyce, 121 N.C. 610,28 S.E. 366; S. v. Witherspoon, 75 N.C. 222.

In the first place, a prima facie presumption of rightful jurisdiction arises from the fact that a court of general jurisdiction has acted in the matter. Downing v. White, 211 N.C. 40, 188 S.E. 815; King v. R. R.,184 N.C. 442, 115 S.E. 172; Starnes v. Thompson, 173 N.C. 466,92 S.E. 259; Wood v. Sugg, 91 N.C. 93; Harvey v. Tyler, 69 U.S. 328; Dean v. Brown, 261 Ky. 593, 88 S.W.2d 298; Horn v. Metzger, 234 Ill. 240,84 N.E. 893; 15 Rawle C. L., 884; 34 C. J., 537. There is nothing on the present record to overturn this presumption. It was not necessary that the Secretary of the Interior should appear as a party to the proceeding. 25 U.S.C.A., sec. 311.

Secondly, it is in evidence that John Teseteskey and Solomon Bird, respondents in the cartway proceeding, were in possession of the Indian lands over which the cartway was laid out, Tracts 404 and 405, claiming them as their own. Whether the claim of either was by allotment from the United States, under the trust deed of 21 July, 1925, with full power of alienation, does not appear. At any rate, the invalidity of the cartway proceeding is not apparent on the face of the record. Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525; U.S. v. Chicago, 48 U.S. 185. See latest expression of the Supreme Court of the United States in U.S. v. McGowan,82 L.Ed., 305.

It is true the defendant proffered as evidence the opinion of the Circuit Court of Appeals in the case of U.S. v. Colvard,89 F.2d 312, dealing with this same cartway, but neither of the parties here was a party there, and the record in that case, upon which the court's opinion was based, is not before us. Hence, under our settled procedure, Newbern v.Hinton, 190 N.C. 108, 129 S.E. 181, the exception cannot be sustained. This was the only evidence offered to rebut the presumption of jurisdiction and its rightful exercise. Townsend v. Townsend, 4 Caldwell, 70, 94 Am. Dec., 184.

Moreover, conceding that the United States in a direct proceeding brought for the purpose might question the validity of this cartway, U.S.v. Minnesota (Circuit Court of Appeals, Eighth Circuit, 12 March, 1938), if Congress has not disavowed the trust, 25 U.S.C.A., sec. 461, still it is not perceived upon what footing this could avail the defendant in a collateral attack here. S. v. Yoder, 132 N.C. 1111, 44 S.E. 689. The United States is not a party to the prosecution, and the suggested voidableness of the cartway proceeding is no defense to the present action.Non constat that a proceeding, voidable as to some third person, is not to be taken as valid in a criminal prosecution against another. S. v. Smith,100 N.C. 550, 6 S.E. 251.

Only void judgments are subject to collateral attack. Downing v. White,supra; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 238; King v. R. R.,supra.

The second question presented by the appeal is whether the defendant is immune from prosecution as an officer of the United States. The record fails to establish such immunity. Vinson v. O'Berry, 209 N.C. 287,183 S.E. 423; Philadelphia Co. v. Stimson, 223 U.S. 605; Isaac v. Googe, 284 Fed., 269; In re Waite, 81 Fed., 359.

There is no evidence that the defendant in destroying the bridge in question was acting under authority of the United States or in pursuance of his duties as farm agent. Isaac v. Googe, supra. One who seeks to defend on the ground of sovereign immunity must show his authority. Poindexter v.Greenhow, 114 U.S. 270; Kneedler v. Lane, 45 Pa., 238.

The practice is now so firmly established as to admit of no questioning that, on a motion to nonsuit, the evidence is to be considered in its most favorable light for the prosecution. S. v. Rountree, 181 N.C. 535,106 S.E. 669. And further, the general rule is that if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for, short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. S. v.Vinson, 63 N.C. 335. But if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. McLeod,198 N.C. 649; S. v. Blackwelder, 182 N.C. 899, 109 S.E. 644.

The remaining exceptions are too attenuate to require elaboration. They cannot be sustained under familiar principles and authorities.

It is freely conceded that the criminal laws of the State are applicable to offenses committed within the Indian Reservation. Utah Power Light Co.v. U.S., 243 U.S. 389; U.S. v. McBratney, 104 U.S. 621.

On the record, as presented, the verdict and judgment will be upheld.

No error.