United States v. Avery,
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80 U.S. 251 (1871)
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U.S. Supreme Court
United States v. Avery, 80 U.S. 13 Wall. 251 251 (1871)
United States v. Avery
80 U.S. (13 Wall.) 251
1. The Court cannot take cognizance of a division of opinion under the Judiciary Act of 1802 between the judges of the circuit court on a motion to quash an indictment, even when the motion presents the question of the jurisdiction of the circuit court to try the offense charged.
2. United States v. Rosenburgh, 7 Wall. 580, recognized and followed.
Avery and others were indicted under the act of May 31, 1870, known as the Enforcement Act, for conspiracy, with intent to violate the first section of that act, by unlawfully hindering, preventing, and restraining divers males, citizens of the United States, of African descent, from exercising the right of voting, and the second count of the indictment after charging this offense further charged, under the 7th section of that act, that in the act of committing the offense aforesaid, they murdered one Jim Williams, "contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of South Carolina." The first count charged the conspiracy without the
murder. The fourth count charged murder in the same manner as the second count.
The defendant's counsel moved to quash so much of the second and fourth counts as charged the murder, on the ground that the circuit court had no jurisdiction to try an offense against the state of South Carolina, and thereupon the following question arose upon which the opinions of the judges were opposed:
"Whether the court has jurisdiction to inquire and find whether the crime of murder has been committed, as set forth and charged, in the latter portions of the second and fourth counts of said indictment, in order to ascertain the measure of punishment to be affixed to the offenses against the United States, charged in the former portions of the said second and fourth counts."
The question was accordingly certified to this Court under the Act of April 29, 1802, which enacts that when a question shall occur before a circuit court upon which the opinions of the judges shall be opposed, the point may be certified to this Court, and by it be finally decided.