State v. . Inman

*539 Seawell, J. While the defendants were under indictment in the Superior Court of the County of Lee for the alleged crimes of rape and robbery from the person, committed in that county, Lt. Col. Weeks, the Staff Judge Advocate of the 87th Infantry Division of the U. S. Army, of which the prisoners were members, belonging to the 517th Parachute Infantry, located at Camp Mackall in Eichmond County, appeared and requested “the immediate release” of the prisoners, and that they be placed in his custody, as authorized agent of the military authorities. It does not appear that at this time any military court had taken cognizance of the crimes alleged to have been committed, or that any such proceeding was contemplated; nor does the request for the “release of military personnel to military authorities” appear to have been based upon any principle other than the mere right to exclusive military control of the prisoners as members of the Army. Title 10, paragraph 1546, (AW 74), to which reference is made in the request for release, is the provision which requires surrender to civil authorities of persons subject to military law, under certain conditions, reading in part as follows : “When any person subject to military law, except one who is held by the military authorities to answer, or who is awaiting trial or result of trial, or who is undergoing sentence for a crime or offense punishable under these articles, is accused of a crime or offense committed within the geographical limits of the States of the Union and the District of Columbia, and punishable by the laws of the land, the commanding officer is required, except in time of war, upon application duly made, to use his utmost endeavor to deliver over such accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial. Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil authorities or to aid the officers of justice in apprehending and securing him shall be dismissed from the service or suffer such other punishment as a court-martial may direct.” In construing the provisions of this section, in Caldwell v. Parker, 252 U. S., 376, 64 L. Ed., 621, the Court came to the conclusion that the Articles of War — 92 referring to murder and rape, and 93 referring to various crimes (including robbery)' — did not confer upon military courts an exclusive jurisdiction to try members of the U. S. Army for such offenses committed within the State and beyond the exclusive territory under the immediate control of the military authorities, even in time of war, but that the State Courts and the military courts had a concurrent jurisdiction of such offenses. *540 It is of interest, altbongb not essential to decision bere, that the Court further suggested: “. . . it is indeed open to grave doubt whether it was the purpose of Congress, by the words ‘except in time of war/ or the cognate words which were used with reference to the jurisdiction conferred in capital cases, to do more than to recognize the right of the military authorities in time of war, within the areas affected by military operations, or where martial law was controlling, or where civil authority was either totally suspended or obstructed, to deal with the crimes specified.” Whether this latter intimation of the highest Federal Court would be followed were the matter again presented to it, we have no means of knowing — a State Court opinion, McKittrick v. Brown (Mo.), 85 S. W. (2d), 385, 390, is cited as holding contra,; but it is clear that Caldwell v. Parker, supra, does mean to hold that, under the circumstances of this case, if the military court, or Court Martial, has any jurisdiction of the alleged offenses under Articles 92 and 93 of the Articles of War — which specifically cover these offenses — the jurisdiction is concurrent with that of the State Court. See, also, U. S. v. Hirsch (D. C. N. Y. 1918), 254 F., 109; Ex Parte Koester, 206 Pac., 116, 56 Cal. Ap., 621. The expression “except in time of war” seems to be relied on for the use of the statute contrariwise — that is, as specific authority for a demand by the military authorities upon the State authorities for the surrender to them of prisoners who are held under indictment in the State Court for the alleged offenses. It would seem that whatever right the military authorities have to demand the release of these prisoners into their custody must come from other principles, which might positively support their superior right to the custody and control of the men when properly asserted, rather than upon such negative-pregnant implication. U. S. v. Matthews, 49 F. Supp. (District Court U. S., Md., Ala., March 17, 1943); CP—Application of Baer (1943), 180 Misc., 330, 41 N. Y. S. (2d), 413. We have no intention of stating that they have no such right — we do not believe that we have reached a point where it is necessary for us to consider that question; but we do point out that the demand for military custody of the prisoners does not imply that there is any purpose to try them by court martial for the alleged offense. Passing now the fact that we are not informed from the record or from the written request of the Staff Judge Advocate, Lt. Col. Weeks, of the specific purpose for which custody of the defendants is requested, other than the general one of mere exclusive military control; and expressing no opinion on the situation thus produced, we come to the question whether the objections taken to the order of Judge Bone are available to the defendants, conceding the purpose of the demand is to secure their custody for trial by the military court. *541 Certainly, the defendants have no right to choose the jurisdiction in. which they shall be tried. After making demand upon the State Court for the release of the prisoners, the military authorities took no further action and do not join the defendants in this appeal or in the petitions for the writ of prohibition. We do not intimate that they were required to do so in order to protect any right they may have to the custody of the prisoners, nor do we indicate any opinion as to the method by which such custody might be acquired. Such matters have usually been settled upon the principle of comity, where, as here, the State and military courts have concurrent jurisdiction of grave crimes. See Digest of Opinion of the Judge Advocate General, 30 July, 1942, 1 Bull. J. A. G. 163, sec. 432 (5); Schiller, Military Law, p. 62. Certainly, the grave danger to peace and order in communities accessible to large military establishments, in which areas soldiers under furlough or leave visit freely on week-ends, and where no military control exists, is a matter for serious consideration; the more so if the civil courts in such areas are to be deprived of their jurisdiction of the offenses or the offenders, although fully functioning throughout the area as in times of peace. The relatively small number of serious crimes committed under such conditions reflects credit on the personnel of the Army; but nevertheless, the draft is no respecter of persons, and it is a matter of common knowledge that they do occur. The destruction of civil jurisdiction in such areas raises a serious question of crime control and the administration of justice. However this may be, the defendants stand alone in this Court and upon the sole contention that the demand made for the release of the prisoners to the military authorities eo instante divested the State Court of its jurisdiction. They contend that they now face the danger of trial by a court having no jurisdiction and the possibility of execution under its judgment. Even if we conceded that the effect of the request for the release of the defendants to the military authorities was to terminate the jurisdiction of the State Court — a conclusion which at present we are unable to reach — nevertheless, the attempted appeal of the defendants from the adverse rulings on their objections to the jurisdiction is premature. The practice is to note the objection to the jurisdiction and preserve the exception upon appeal from the final judgment. Appeal in criminal cases is wholly statutory, and our statute, G. S., 15-180; G. S., 15-181, does not provide for an appeal in such cases except from a final judgment. 8. v. Gox, 215 N. C., 458, 2 S. E. (2d), 370; 8. v. Blades, 209 N. C., 56, 182 S. E., 714; S. v. Boohs, 207 N. C., 275, 176 S. E., 752; S. v. Nash, 97 N. C., 514, 2 S. E., 645; 8. v. Hazell, 95 N. C., 623, 624. *542 While recognized in this jurisdiction, the writ of prohibition is considered discretionary and has been uniformly denied where there is other remedy. Perry v. Shepherd, 78 N. C., 83; R. R. v. Newton, 133 N. C., 136, 137, 45 S. E., 549; S. v. Whitaker, 114 N. C., 818, 19 S. E., 376. The defendants’ apprehension that they may suffer penalties of a judgment rendered by a court without jurisdiction is not well founded, provided they should be under the necessity of presenting the question upon a timely appeal. On the motion of the Attorney-General, The appeal, as to" both defendants, is dismissed; The petitions for writ of prohibition are denied.