after stating the case, delivered the opinion of the court.
The prosecution and punishment of crimes and offences committed against one of the States of the Union appropriately belong to the courts and authorities of the State, and can be interfered with by the Circuit Court of the United States so far only as Congress, in order to maintain the supremacy of the Constitution and laws of the United States, has expressly authorized either a removal of the prosecution into the Circuit Court of the United States for trial, or a discharge of the prisoner by writ of
habeas corpus
issued by that court or by a judge thereof.
Tennessee
v. Davis,
In the case at bar, Joseph II. Carrico, having been arrested under a warrant from a justice of the peace of the county of Smyth on a charge of murder, was discharged by the District Judge on writ of habeas corpus from the commitment under state process; and having afterwards been indicted by the grand jury of the county for that offence, and committed by order of the county court for trial upon the indictment, the prosecution against him was assumed to have been removed into the Circuit Court of the United States for trial, and was there tried.
The State of Yirginia, by petition for a writ of mandamus, questions the validity both of the removal and of the discharge, and it will be convenient to consider the two separately, beginning with the removal.
It is contended by the respondent that the prosecution was rightly removed into the Circuit Court of the United States under section 643 of the Revised Statutes, (the constitutionality of which was affirmed in
Tennessee
v. Davis, and in
Davis
v.
South
Carolina, above cited,) authorizing the removal into the Circuit Court of the United States for trial of “any
It is important, therefore, to consider whether the conditions of that section have been complied with.
By that section, it is only when the suit or prosecution has been “ commenced in any court of a State,” and “ at any time before the trial or final hearing thereof,” that it “ may be removed for trial into the Circuit Court,” “ upon the petition of such defendant to said Circuit Court, and in the following manner: ” The petition must set forth the nature of the suit or prosecution, and be verified by affidavit, and supported by' certificate of counsel. It “shall be presented to the said Circuit Court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office.” “The cause shall thereupon be entered on the docket of the Circuit Court, and shall proceed as a cause originally commenced in that court.” The clerk of the Circuit Court is required, when the case is commenced in the state court otherwise than by capias, to issue a writ of certiorari to -the state court for the record and, when it is commenced by capias, to “issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court or left at his office by the marshal; ” “ and thereupon it shall be the duty of the state court to stay all further proceedings in the-cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the Circuit Court, and any further proceedings, trial or judgment therein in the state court shall be void.”
The removal of the case out of the jurisdiction of the- state, court and into the exclusive jurisdiction of the Circuit Court of the United States takes place, without any order of the Circuit Court, as soon as the state court, by -the service upon it, or
The records of the District Court and of the Circuit Court, copies of which are annexed to the petition for a mandamus, present a curious and complicated condition of things, in which some of the confusion may be owing to the facts, that • not only is the District Judge a judge of either court, but that in the Western District of Virginia both courts are held at the same times and plaees and have the same clerk. Rev. Stat. §§ 572, 609, 622, 658'; Act of September 25,1890, c. 922, 26 Stat. 474.
The petition for removal, praying also for a writ of habeas corpus cum causa, was evidently framed under section 643 of the Revised Statutes, and was addressed to the District Judge as “Judge of the United States Circuit Coui’t;” and it- is said, in his opinion delivered on allowing an appeal to this court from his order of 'January 12 upon the habeas corpus, that “ the petition for removal, as shown by record evidence used in the discussion of this motion, was not filed in the clerk’s office of the Circuit. Court until December 19, 1S91.” 51 Fed. Rep.'202.
But- that record evidence, all of which is in the record now before u's, shows only that the petition was filed in the clerk’s
The single petition, addressed to Judge Paul as Judge of the Circuit Court, and praying for a removal of the cause into that court, and for a writ of habeas corpus cum causa to complete the removal, (which,, so far as appears-on the records of either court, was the only petition, either for a removal or for a habeas corpus,) appears to have been treated' by the judge as if it had been, or had included, two separate petitions ; the one a petition for-an ordinary writ of habeas corpus, under section 753, which might be granted by the District Court or District Judge; the other a petition for a removal of the cause, under section 643, which could only be addressed to and filed in the Circuit Court.
If the petition for removal had been duly filed in the Circuit Court of the United States, and a writ of habeas corpus cum causa had been duly issued by the clerk' of that court, and served on the clerk of the county court, no order of removal would have been necessary. If the petition was not so filed, and neither such a writ of- habeas corpus, nor a writ of certiorari to bring in the record, was so issued and served, no order, even of the Circuit Court, for the removal of the cause, could have any effect. In any aspect, the District Court had- no authority to order the prosecution to be removed into the •Circuit Court.
But there is a more serious objection to the exercise of jurisdiction by the Circuit Court of the United States over the indictment found in the state court.
By the law of Virginia, murder or other felony must be prosecuted by indictment found in the county court; and a justice of the peace, upon a previous complaint, can do no more than to examine whether there is good cause for believing that the accused is guilty, and to commit him for trial before the court having jurisdiction of the offence. Virginia Code of 1887, §§ 3990, 4016, 3955-3971.
The petition for removal, which was sworn to on December 12, 1891, alleged that Kirk, a justice of the peace of Smyth County, had that day issued his warrant to a constable to arrest the petitioner and bring him before the justice on a charge of the murder of Nelson, and that the petitioner had been arrested by the constable on that warrant, and was now. confined in the county jail, as the petition alleged, “awaitinga trial before said justice upon the said charge of murder,” which can only mean an examination before the justice with a view to a commitment.to await the action of the"grand jury; and prayed that “said cause” might be removed from the jurisdiction of the justice and of the county court into the Circuit Court of the United. States for trial, and, “upon the removal of said prosecution, that a copy of the record-and proceedings before' said justice and by said constable ” might be brought into the-Circuit Court.
When that petition was signed and sworn to, there had been no proceedings, .except before the justice of the peace and by
By the terms of section 643, it is only after “ any civil suit or criminal prosecution is commenced in any court of a State,” and “ before the trial or final hearing thereof,” that it can “ be removed for trial into the Circuit Court next to be holden in the district where the same is pending,” and “shall proceed as. a cause originally commenced in that court.”.
• Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offence, which the magistrate has no jurisdiction himself to try, before the court in. which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution,-than is an arrest by an officer without a warrant for a felony committed in his presence.
We are aware that under this section the opposite view has prevailed in some cases in the Circuit Courts.
Georgia
v.
Port,
A grand jury, whether of the State or of the United States, is empanelled and sworn to inquire into and present offences
In a criminal case removed from the state court into the Circuit Court of the United States after indictment found, the Circuit Court of the United States tries the case upon the accusation presented by a grand jury of the State, and framed with the assistance of the law officers of the State.
Tennessee
v. Davis,
• dj>ut if a person arrested to await the finding of an indictment may remove the case before an indictment is found, the accusation is not framed and presented by the officers and the grand jury of the State whose criminal law has been violated, but by the officers and grand jury of another government; and the Circuit Court of the United States has not only to try the defendant, but also to charge its own grand jury as to the accusation against him on behalf of the State; and this too in a case in which the very, ground of removal into the Circuit Court is the defendant’s suggestion that he needs the protection of the Constitution and laws of the United States against the prosecution by the State.
"We cannot believe that such was the intention of Congress in the statutes enacted to secure a fair and impartial trial between the State seeking to vindicate its public justice, on the one hand, and a defendant claiming the protection of the Constitution and laws of the United States, on the other.
In any case falling within the purview of the acts of Congress, the defendant is adequately protected against danger of unlawful oppression from the courts or authorities of the State, by the right to remove it into the Circuit Court of the United States, as soon as a prosecution has been commenced
The true rule on this subject, as it appears to us, was forcibly and accurately expressed by Mr. Justice Grier, in a case removed from the court of quarter sessions of Bucks County in the State of Pennsylvania, before indictment found, into the Circuit Court of the United States for the Eastern District of Pennsylvania, under the act of Congress of March 3, 1863, c. 81, § 5, (12 Stat. 756,) since incorporated in section 611 of the Revised Statutes, and which, though differing from the statute now in question in requiring the petition for removal to be originally filed in the state court, yet, in substantial accord with this statute, provides that, “ if any' suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person,” for any such act as is therein described, done by virtue or under color of authority of the United States, the defendant may file a petition “ for the removal of the cause •for trial at the next Circuit Court of the United States to be holden in the district where the suit is pending.” Mr. Justice Grier, after quoting these words, ordered the case to be remanded to the state court, for the following reasons: “ The petition of the defendants brings their case fully within the provisions of this section, but the removal is premature. The prosecution has not been commenced in the state court. A warrant has been issued by a justice of the peace, and the defendants have been arrested preparatory to the commencement of a prosecution in the state court, but the attorney for the Commonwealth has not sent a bill to the grand jury. We do not know, therefore, whether the Commonwealth of Pennsylvania intends to prosecute the defendants for the alleged offence, or whether the grand jury will find a bill, without which the prosecution cannot be said to be ‘ commenced in the state court.’ The act contemplates the removal of a prosecution ‘pending’ that a ‘trial’ may be had in the Circuit Court. If the attorney of the United States were required to send a
It appearing upon the face of the petition for removal, as well, as by the copies of records laid before this court, that no prosecution had been commenced in the state court, within the meaning of section 643 of the Revised Statutes, when the petition for removal was drawn up and sworn to, nor even when it was filed in the Federal court, the prosecution subsequently commenced by the presentment of an indictment in the state court was never lawfully removed into the Circuit Court of the United States ; for, in all cases of removal from the state courts, the jurisdiction of the Circuit Court of the United States rests and dapends upon the statements made in the petition for removal, and verified by the oath of the petitioner.
Virginia
v.
Rives,
The result is that the Circuit Court of the United States has, without authority of law, assumed jurisdiction of an indictment found in the courts of the State of Virginia for a crime against the laws of the State, and that the State is entitled to have the prosecution remanded to its courts to be there dealt with according to law. For aught that appears on this record, the State is not bound to commence or to carry on the prosecution in the courts of another government, but is entitled'to resume its own rightful jurisdiction and authority, and to try the offender in its own courts. If the case should be allowed to proceed in the Circuit Court of the United States, and should finally result in an acquittal of the' charge, in whole or in "part, the State could not have a writ of 'error to review the judgment.
United States
v.
Sanges,
144 U. S.
If any delay on the part of the State, in a case of this kind, could justify a denial of the writ of mandamus, no unreasonable delay is here shown. So far as appears by the copies of records submitted to us by both parties, the Circuit Court of the United States first took jurisdiction of the indictment on Saturday, May 14, 1892. It is alleged by the petitioner, and not denied by the respondent, (although the fact does not appear of record,) that on that day a motion to remand the case to the state court was made by the State, and denied by the Circuit Court. The accused Was found guilty of voluntary manslaughter on Monda}', May 16, the very day on which October term 1891 of this court was finally adjourned. On the next day, the District Judge set aside the verdict, continued the case to October term 1S92 of the Circuit Court, and admitted the accused to bail on his own recognizance. On the first day of the present term of this court, and before any further proceedings in the Circuit Court, the State applied to this court for leave to file the petition for a mandamus.
The necessary conclusion is that the State of Virginia is entitled to a writ of mandamus to compel the respondent to remand the indictment and prosecution against Carrico to the county court in which the indictment was found.
The matter of the discharge of the prisoner by the District Judge upon the writ of
habeas corpus
may be more briefly disposed of. If that writ had been a writ of
habeas corpus cum causa,
issued by the clerk of the Circuit Court, as ancillary to a removal of the prosecution into that court, under section 643, the, remanding of the cause would carry with, it the right to the custody of the prisoner. But being, as appears by ..the records annexed to the petition for a mandamus, as well ■'•s by the return to the rule to show cause, an ordinary writ of
'-as corpus,
issued by the District Judge upon the ground
It follows that, as to the discharge on the writ of habeas corpus, no order can properly be. made upon this petition; but that, for the reasons above stated, there must be a
Writ of mandamus to remand the indictment and prosecution of the Commonwealth of Virginia against Joseph II. Carrico to the county court of Smyth County.