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
ON CERTIFICATE OF DIVISION IN OPINION BETWEEN THE JUDGES
OF THE CIRCUIT COURT FOR THE DISTRICT OF SOUTH CAROLINA
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,
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.
The CHIEF JUSTICE, on the following day, announced that a majority of the Court were of opinion that the case must be ruled by United States v. Rosenburgh, and the case be
Dismissed for want of jurisdiction.
* 16 Stat. at Large 140.