42 F. 689 | U.S. Circuit Court for the District of Western North Carolina | 1890
The petition for the removal of this case into this court, and for a writ of habeas corpus cum causa, was duly filed in the office of the clerk of this court on the 6th day of March, 1890, under the provisions of section 643 of the Revised Statutes of the United States. As the circuit court was not then in session, the clerk, being of the opinion that the averments in the petition were sufficient for the removal of this case under the provisions of said statute, entered the case on the record of this court. As it further appeared that the petitioners were in actual
I am of the opinion that, under the proceedings for the removal of this case from the state tribunal, this court has acquired full jurisdiction to hear, try, and determine all questions of law, and all matters, of fact involved. The prosecution was commenced when the warrant of the justice of the peace was issued, and the petitioners were arrested. This opinion is founded upon a fair and reasonable construction of the language, purpose, and spirit of the statute under which these proceedings were instituted. It is also supported by carefully considered opinions delivered in United States courts. State v. Port, 3 Fed. Rep. 117; State v. Bolton, 11 Fed. Rep. 217; Tennessee v. Davis, 100 U. S. 257.
I regard a further discussion of these questions of law as unnecessary. The motion to dismiss is disallowed.
The material averments made in the petition bring this case clearly within the provisions of section 643 of the Revised Statutes of the United States, and the proceedings have been legally and regularly instituted. After hearing the evidence on both sides, and the arguments of counsel, I am of the opinion that there is not even slight evidence tending to show that L. M. Cates, A. T. Dodson, and W. T. Dickson had an}'■ participation in the unpremeditated homicide. The rule of law that confederates in an unlawful undertaking or transaction are each personally responsible for the evil consequences that ensue does not apply to this case. These parties were engaged in the performance of a legal duty, under the direction of superior officers of the law, and in no wa'y exceeded the scopé of their legal duty and authority. As there areno grounds for holding L. M. Cates, A. I. Dodson, and W. I. Dickson for further prosecution, it is ordered that they be discharged. As there is some conflict in the evidence as to the conduct of the revenue officers S. Kirk
(April 18,1890.)
Since hearing the evidence in this case, and the motions and arguments of counsel on the first day of this term, I have carefully considered the questions of law and the matters of fact then reserved. I am of the opinion that the bill of indictment found by the grand jury in the state court, after the removal, and during the pendency of this case in this court, is null and void, and cannot be the foundation for a prosecution of the alleged offense in this or any other court. The statute under wdiich the proceedings for the removal of this case into this court were instituted expressly declares that after the removal “any further proceeding, trial, or judgment therein in the state court shall be void.” The language of the statute is direct and positive, and there can be no correct judicial interpretation and action other than giving force and effect to this clear expression of the legislative will of congress. The statute is constitutional, and is a supreme law of the land. When this court has acquired jurisdiction under this statute of the parties and subject-matter of this case, no other court can institute proceedings for the prosecution of the parties for such alleged offense. The jurisdiction of this court, when thus acquired, is for all purposes exclusive.
Prom my recollection of the testimony set forth in the written statement which will be filed with this opinion, I have formed the following conclusions as to the material facts in this case: I find that S. Kirkpatrick and A. C. Patterson were duly-authorized revenue officers of the United States, and were in the performance of official duty, in searching for illicit distilleries, which they had been informed were in operation in that neighborhood; that while so engaged, about sunrise of the morning of the 25th of February, they discovered in the woods, and near a branch, the remains of a furnace of a deserted illicit distillery, and found McMannen. standing not far off, observing their movements; that no arrest was made and no menacing language was used, and Mc-Mannen voluntarily agreed to show them the house of Mr. Hunt, and went in front of the officers for that professed purpose; that the officers did not know that the house they saw, not far from the discovered furnace, was the house of McMannen; that the officers had reasonable grounds for suspecting that McMannen, when he reached .the path lead
Cates, Dickson, and Dodson in no way counseled or participated in the homicide.^ They were not summoned by Kirkpatrick or Patterson, but were present in the performance of duties directed by their immediate superior officer. They are men of good character, and have no motive to induce false testimony. The testimony of William and John Overaker, who were 350 yards distant, is merely the expression of an opinion as to the succession of the shots, from the nature of the sound. Such testimony is not sufficient to overcome the direct and positive testimony of the witnesses who were present, and could both see and hear. The shots of McMannen and Patterson were both fired in the house, and the reports were thus, in some degree, obstructed. The pistol of Kirkpatrick was of large calibre, and was fired in the open air, and may have séemed to be the loudest report to persons at a-distance.. Such supposi
Suppose that these officers had been duly authorized by law, and were seeking to surprise a band of counterfeiters, and to seize the implements and materials of such unlawful business, could there be any doubt as to the right and duty of such officers to follow and watch a person whom they had reasonable grounds to suspect was endeavoring to communicate information that would frustrate their lawful purpose and efforts? This principle of common sense and common justice certainly ought and does apply to illicit distillers, who carry on their nefarious business in secret places, by night and on the Sabbath, and who usually have sentinels and signals to give warning of the approach of revenue officers. In some localities this just principle is not as fully recognized in cases of illicit distillation as it is in the case of other crimes.
I deeply regret the occurrence of the unfortunate transaction that has given rise to these proceedings, for it has resulted in a homicide, and it has deprived a faithful revenue officer of the government of his sight, of his capabilities of supporting his family, and left him only a life of suffering. Similar cases have often occurred in the course of the enforcement of the internal revenue laws relating to the illicit manufacture, rer moval, and sale of spirituous liquors. The violators of such laws have sometimes been killed, and they have often been the slayers of revenue officers engaged in the performance of official duty. Congress has made provision by statute for securing a fair and impartial trial of revenue officers in the courts of the United States, for acts done in the performance of official duty. Such provisions are just, reasonable, and constitutional. It is a high and imperative duty of the government to make provisions by law to secure a fair and impartial trial for officers who are charged with crime for obeying its mandates and enforcing its laws. The enactment of such laws by .the government is the exercise of a necessary, in
“It is the exclusive province of the United States courts to ultimately and conclusively determine any question of right, civil or criminal, arising under the laws of the United States. It is therefore the prerogative of the national courts to construe the national statutes, and determine upon habeas corpus whether a homicide, for which the petitioner is charged with murder by the state authorities, was the result of an ‘act done in pursuance of a law of the United States,’ and, when that question has been determined in the affirmative, the prisoner will be discharged, and the state has nothing more to do in the matter.”
This case has just been affirmed by the United States supreme court. 10 Sup. Ct. Rep. 658.
Being well satisfied from a decided preponderance of the evidence in this case that the petitioners were acting in the line of official duty when the homicide occurred, and that they are not guilty of murder, as charged in the state process under which they were arrested, it is ordered that they be discharged.