28 F. Cas. 522 | D. Minnesota | 1872
The question presented by the-plea in abatement is an interesting one, and although I am not able to give it at this time the careful consideration which its importance demands, I think I am safe in announcing the conclusions arrived at upon the examination of such authorities as have been within my reach, at least; so far as to lay down a rule of comity which must exist between the federal and the state courts in cases of this character, whether they arise in the exercise of criminal or civil jurisdiction. The paint involved, though interesting, is not entirely a new one. It has engaged the attention of both the state and federal courts, and the result in nearly every instance has been to recognize the right of both courts to punish, in the proper exercise of their authority, "when the same act [U. S. v. Marigold, 9 How. (50 U. S.) 570] might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the state and federal governments.” The court in this case, regarded this doctrine as distinct; ly enunciated in the case of Fox v. Ohio, 5 How. [46 U. S.] 410. and adopted it as sound. In the latter ease, the point raised was whether the statute of the state of Ohio, which provided for the punishment of passing counterfeit coin, was consistent with, or in contravention of the constitution of the United States, or any law enacted in pursuance of the constitution. After a full and exhaustive argument, the supreme court of the United States decided, Mr. Justice McLean alone dissenting, that the state possessed the power; but Mr. Justice Daniel, who delivered the opinion, said: “It is almost certain that in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by the one, would not be subject, a second time, to punishment by the other, for acts essentially the same, unless. public safety demanded it.”
A very great variety of opinions existed previous to these decisions, as is shown by the authorities cited by the learned counsel for the defence. My attention has been called to the case of Houston v. Moore, 5 Wheat. [18 U. S.] 1, in which Judge Washington says, “That if the jurisdiction be concurrent, the sentence of either court, either of conviction or acquittal, may be pleaded in bar of the prosecution before the other.” The defendant’s counsel insists that by a parity of reasoning the plea in abatement must be held good in the case at bar, and. the indictment dismissed, as it is undeniable that the state court first obtained jurisdiction of the person of the offender. I feel the force of the reasons argued, but cannot assent to the opinion above expressed. Justice Johnson, who delivered a separate opinion in the case, appears to have announced the doctrine which has subsequently governed the court in. eases involving similar questions of jurisdiction. He says, “Why may not the same offence be made punishable both under the laws of the state and of the United States? Every citizen owes a double allegiance; he enjoys the protection and participates in the government of both the state and the United States. * * * When the United States has not assumed this exclusive exercise of power, I cannot imagine a reason why the. states may not also, if they feel themselves injured by the same offence, assert their right of inflicting punishment also.” This opinion also dissents from the view maintained, that there might be embarrassment in the general administration of justice, and, I think, fairly indicates that rule of comity which should control the courts. Some able legal minds at that time, among the number Chancellor Kent, took the same view of the case as did the court in 5th Wheaton; others, Justices Story and McLean, have considered state laws similar to this one as repugnant to the constitution of the United States, and that they must necessarily yield; if not, then delinquents or offenders are liable to be twice put in jeopardy and be twice subjected to punishment, “against the manifest intent of the act1 of congress, the principles of the common law, and the genius of our free government.” They also deny that after the federal congress have provided for the trial and punishment of an offence manifestly within their constitutional authority, a state law, creating and defining a like offence, could confer jurisdiction upon a state court to try it. without the consent of congress. Others, not exactly concurring in the reasons announced above, have doubted the authority of the state governments to enact any law which might make one act an offence against both governments. A very ingenious view is cited by Ioynes, Judge, in
These views, so manifestly humane, commend themselves to my sense of justice; but the. concurrent jurisdiction must be regarded as settled. The state and federal courts both having jurisdiction, the question then naturally arises, How can a conflict be avoided? In the case before me, there was no process issued by this court that could reach the person of the prisoner. U. S. v. Van Fossen [Case No. 16,607], and note. The marshal exceeded his authority in taking him from the custody of the sheriff. He should have made a return of the fact, that the officer held the prisoner in custody for a violation of state laws. Had this course been pursued, no apparent conflict would exist. The marshal having arrested the prisoner and brought him before the court, it is for me to adopt a rule which suggests itself as sound, and which has been distinctly announced by the supreme court of the United States in several instances. Freeman v. Howe, 24 How. [65 U. S.] 583; Fuck v. Colbroth, 3 Wall. [70 U. S.] 334. It is true these cases were not of a criminal nature, but I can see no distinction in principle. The point to be considered was, how to avoid embarrassment by a conflict of jurisdiction between the two courts. The court in substance- say that the one which first has control of the subject matter shall continue to exercise jurisdiction until judgment, without molestation or interference from the other. This, it seems to me, is not only the prudent and wise course to pursue in criminal as well as civil cases, but is due to that common courtesy and comity which must exist between courts, and under a complex system like ours. I shall sustain the indictment in this case, but believing that the state exercised jurisdiction in good faith, leave the state court to deal with the offender. The federal authorities can take such steps as they may be advised of in the future.