Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RAND v. STATE OF ARKANSAS

February 16, 1961

VIRGINIA RAND, PETITIONER,
v.
STATE OF ARKANSAS. RESPONDENT.



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
  privilege to

  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
  process.
    "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
  testimony remains.
    "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 follows:

    "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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.