The opinion of the court was delivered by: John E. Miller, Chief Judge.
On February 9, 1961, the petitioner, Mrs. Virginia Rand, filed
her petition for the removal to this court of the above proceeding
from the Circuit Court of Benton County, Arkansas.
To date no motion to remand has been filed by the State of
Arkansas, but it is the duty of a court to ask and answer for
itself the question whether it has jurisdiction. Westark Production
Credit Ass'n v. Fidelity & Deposit Co., D.C.W.D.Ark. 1951,
100 F. Supp. 52, 56.
Rule 12(b)(2) of the Fed.R.Crim.P., 18 U.S.C.A., provides:
"* * * Lack of jurisdiction or the failure of the
indictment or information to charge an offense shall
be noticed by the court at any time during the
pendency of the proceeding."
Lack of jurisdiction of a federal trial court of the subject
matter of litigation cannot be waived by the parties or ignored by
a federal appellate court. Thus it is the duty of this court to
determine at the outset whether it has jurisdiction of the subject
matter of the litigation. Title 28 U.S.C.A. § 1447(c); Kern v.
Standard Oil Co., 8 Cir., 1956, 228 F.2d 699.
Mrs. Rand was indicted on August 29, 1959, by a Grand Jury of
Benton County and charged with the crime of murder in the second
degree. Ark.Stat.Ann., Secs. 41-2201 and 41-2206 (1947). On
November 20, 1959, the petitioner was placed on trial in the Benton
Circuit Court. The trial resulted in a verdict and judgment of
guilty of murder in the second degree, and a sentence of 8 years in
the Arkansas Penitentiary was assessed. The case was appealed to
the Arkansas Supreme Court, and on December 12, 1960, the Supreme
Court reversed the case on the ground that inadmissible evidence
had been introduced. Rand v. State, Ark., 341 S.W.2d 9.
The petitioner alleges that she is denied and cannot enforce in
the courts of the State of Arkansas, or of the Fourth Judicial
District of the State of Arkansas, the rights secured to her by the
Constitution and laws of the United States providing for due
process of law and equal civil rights of citizens of the United
States. The specific allegations in the petition are contained in
paragraphs numbered 7 through 11, and read as follows:
"7. Petitioner alleges that it is absolutely
impossible for her to obtain the fair and impartial
trial to which she is entitled to under the Due
Process of Law clause of Amendment No. 14 to the
Constitution of the United States. That said fair and
impartial trial cannot be had within the Fourth
Judicial District of Arkansas. That under the
Constitution and Statutes of the State of Arkansas
this Petitioner is denied such right and privilege
and cannot enforce such right and privilege in that
the Constitution and Statutes of the State of
Arkansas specifically bar a change of venue from a
Judicial District, and under the holdings of the
Supreme Court of Arkansas a defendant is barred from
such change. That a fair and impartial trial is a
which this petitioner, as a citizen of the United
States, is entitled to receive. That such denial of a
fair and impartial trial amounts to a denial of due
"8. Petitioner states that such prejudice against
the defendant and petitioner, has been generated
within the Fourth Judicial District, as to amount to
a complete denial of the civil rights and equal
protection to which this petitioner is entitled to.
That this case has been so publicized throughout the
Fourth Judicial District as to create a mob feeling
against this petitioner. That the Constitution and
Statutes of the State of Arkansas do not afford a
remedy to this Petitioner or afford to her relief in
this cause. That this petitioner has, in effect, been
`singled out' and is denied the equal protection of
law to which a person charged with crime is entitled
to. That she has no remedy in the Courts of the State
of Arkansas to enforce said right.
"9. Petitioner states that in the trial of this
cause on the _____ day of _____ 1959 inadmissible and
incompetent and inflammatory testimony was
deliberately introduced on behalf of the State of
Arkansas and said testimony and evidence was quoted
and distributed over the Fourth Judicial District of
Arkansas. That such testimony was intended to inflame
juries and the people of the Fourth Judicial District
and such was its effect. That the effect of such
"10. Petitioner states that on the 12th day of
December 1960 the cause entitled Virginia Rand,
Appellant, v. The State of Arkansas, Appellee, was,
by the Supreme Court of Arkansas, reversed. That said
reversal was unqualified and said case was not
remanded, according to the opinion in said case No.
4977, for a new trial. That said cause was not
remanded, according to the opinion, to the Benton
Circuit Court. That the Mandate filed in this cause
in the Benton Circuit Court, under the authority of
the said highest court within the State of Arkansas
purports to remand the cause. That said mandate is in
conflict with said opinion and judgment of the said
Supreme Court. That the action of the Benton Circuit
Court in attempting to force this petitioner to trial
in a denial of due process. That the petitioner,
under the facts set forth above, has no remedy in the
courts of the State of Arkansas to enforce her right
to due process and equal protection.
"11. Petitioner alleges that it is impossible for
her to procure the equal protection which the law
places around those accused of crime in the said
Fourth Judicial District of Arkansas."
The law has long been established that there is no common-law
right to remove an action from a state court to a federal court,
and removal may be had only as authorized by an act of Congress.
This rule is stated in 45 Am.Jur., Removal of Causes, Sec. 3, as
"There is no common-law right of removal of a cause
from a state to a United States court. The right
exists only by virtue of and to the extent authorized
by act of Congress. It cannot rest on the mere
convenience of the parties, nor can it be exercised
in any case not falling within the terms of the act
authorizing it. So, a suit commenced or pending in a
state court must remain there unless and until cause
is shown ...