STATE fl. KIRKPATRICK.
689 e.t ale
STATE OF NORTH CAROLINA .". KIRKPATRICK
(C'lirewl.t Court, W. D. North CaroUna. April Term, 1890.)
L
REMOVAL OF CAUSES-CRIMINAL PROSECUTION.
Under Rev. St. U. S. § 648. which provides that, when any civil suit or criminal prosecution" is commenced "in' a state court for an act done by an ofllcer under the revenue laws of the. United States, the same may be removed into the United States circuit court a prosecution is "commenced» when the warrant is issued and the arrest made by the state o01cers, and it is no objection to the removal that no indictment has yet been found in the state court, and that there is no provision in the federal law for indictment for offenses against the state law.
I.
BAME-FuRTHER PROCEEDINGS IN STATE CoURT.
Under said section, which declares that after removal "any further proceedin¥, trial, or therein in the state court shall be void, » an indictment found in a state court after the removal of the cause to the United 'States circuit court was I\ull; and where, upon habeas corpus cum Causa. it appears that the prisoners were in the discharge of their duty as revenue olllcers of tile. United States when the act was committed. and were without fault, they will be discharged.
.. CONJl'lI:DERATES IN CRIME-REVENUE OFFICERS.
The rule t'bat confederates in an unlawful undertaking are .each responsible .for the evil c()nsel}uences that ensue does not apply where a homicide was eommitited by one ofa PartY of· revenue o01cers while the party was engaged in the duty of . foj.' illIcit distilleries. '
"
Revenne ofllcers searching for illicit distilleries came npon a furnace from which the still fixtures had been recently removed. A man was seen observing their , movements, who afterwards offered to conduct to a certain house, and walked in front'of tbemfor that Soon he began to run towards the house, and the . ,olllcers ran after him, when he..seized a, gun. fired upon aud wounded one of them, and was shot by another. Herd, that the ofllcers were warranted in suspecting him of an intention to warn gailty parties, and, although they had no warrantfoi' his were justified in running after him to fl'Wltrate that design.
RBVENUE OFFIOBRS-lLLICIT' DISTJLI.EBIES-JUSTIFJABLE HOMICID.E.
Preliminary Examination<;>n lulbeas C01'pUB cum causa. Rev. St, U. S" § 643, provides that, "when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States, * . on account of any act done under oolorof his office, * * * the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending; * * * and any further proceedings, trial, or judgment therein in the state court shall be void." Isaac Strayhorn and Robert Winston, for the State. Jas. E. Boy,d, W. S. Ball, W. P. Bynum, and Ohas. Price, U. S. Atty ·. for defendants.
DICK, J. The petition for the removal of this case into this court, and for a writ of lulbeascorPUB cum cauaa, was duly filed iIi 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 avennents in the petition were· sufficient for the removal of this case under the provisions of said statute, entered the case on the reeordof this court. As it further appeared that the petitioners were in actual v.42F.no.11-44
'llGO
FEDERAL' REPORTER,
vol. 42.
custody under due process issued by state authority, the clerk issued a to the marshal of thisdistnct, together writ of ha1Jeas"c0rpu8 cum with a duplicate, to be served on the clerk ofthe state court for the county in whioh thwhomicide occurred. By virtue Msuch writs the marshal took the bodies ofthe petitioners into his custody, and on the 11th day of coutt;Jthen in session iothis city., Aatheclerkof the state court had' not made a return ,of a copy of which the and the solici!or present, the court ordered tbatthe case be contIOfor the ueduntil'tbe 14th, and thatdtie notice be On At his request, comthe 14th of March the soliCitor, ,was not municat.d,;,by"the counsel for the defense, andiwith the consent of the was continiled to the,7th dayo! Ap!11;,the tlr$( day of term,of court. " 'ihe case now being before the court for the the prosecution made a motion to dismiss the proceedings for, removal, upon the ground that for, at thetirne wh{ltl tlie petition was filed and'tlle, writ was issued, no bill of indictment had been found the by a grand'jury in case, ,and ofh\W,'foi:the finQingof a billin;aUnited CQurH'ol' anotfenseagainst a. l8;Wof the state. "," .. " ',' ", the, proceedings for the removal of this .' the 'state' tribunal",tbiscpurt hM, ., full jurisdiction to of IllW1 and aU/matters of fact involved. TheproseotttioD waS <lommenced when the 'wanant of the justice of the peace was issued, and the petitioners were arrested. This opinion is foundeduponafairafi'd'l'easonable construction 'of lan! gungej purpose, and, spirit, of'the statute under 'which these proceedings were'il1stituted.:Itis also supported by carefully considered opinions inUnitedState& coUi'ts.Statev.:PortI 3Fed;>Rep.117;'State v. 'BoltOn, 11 Fed. 217; Tennesseev. Davia, 100 U. S. 257. ' I regard a further, discuBsio.n' of these questions of law as unnecessary. " , The motieuto dismililiacl.isallowed. 'The' material'll.vel'metlts made in the petition bring this case clearly withinithe p1X)visions of section 643 of the Revised Statutes of the United States, and the procee0ings have been legally and regularly institUted:. After hearing the evidence on both sides, and the,arguments of counsel, I am Of t'lie that there ill not evensl(ght evidence tending to show that L. M. Cates, A. T. Dodson, and W. T. Dickson had any participation in the unpremeditated homicide. The rule of law that confederates.in,aDunlawful undettaking or transaction are each personally responsiblafQl: the evil consequences that ensue does not apply to this case., ' 'fpeeeparties. \yere engaged in the performance of a legal duty', ubder;tbe direction 6f superior officers of the laiw,' and in 00 way exceeded scope theirJegal duty andauihority. ' As there are no grounds for CatesjiA.L podson,and W.I.Dipkson for fnrther prosis ordered tbat they be :di:scharged. As there is some con:tliet}in;lth48videncEl as to the conduct of.the revenue officers S.Kirk-
causa
STATEV. KIRKPATRICK.
691
patrick and A. C. Patterso'n in the unfortunate transaction, I will hold them under their bonds until I can give the testimony my most careful consideration. I will also reserve for further considel'ation the question of law presented by the certified:copy of the record of the superior court of Orange, showing that a bill of indictment has been found in said superior court against the petitioners for the alleged murder of Henry McMannen. It appears that said indictment was found in said state court after the removal of the case to this court. I will, during the next eight days of this term, hear further argument as to the force and effect of the proceedings in the state court, if counsel desire to present their views more fully_ ' (April 18, 1890.)
arguments of counsel on the first day of this term, I have care-' fully considered the questions of law and the matters offaet then reserved. I am of the opinion that the bill of indictment found by the grand jury in the state cpurt, after the. removal, and during the pendency of this case ,in thill court, is null and void, andcRnnot be the foundation for a prosecution. of the alleged offense in this or any other court. The statute under which 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." be no The language of the statute is direct and positive, and. there correct judicial interpretation and action other than giving force and ·ef" fect to thiscl6lU' expreSllion of the legislative will of congress. The statute is constitutional, and is a supreme law of the land. Whenthis court bas acquired jurisdiction under this statute of the parties and subject-matter of this case, no other court can institute proceedings for the proSElcution of the parties for such alleged offense. The jurisdiction of tbis court, when thus acquired, is for all purposes exclusive. From my recollection of the testimony set forth in the written statement which,will be filed with this opinion, 1 have formed the following conclusions as to the material facts in tbiscase: I find that S. I\irkpatrick and A. C. Patterson were duly-authorized revenue otlicers of the United States, and were in the perJormance of official duty, in ing for illi¢it distilleries" which they had bElen informed were in tion in that neighborhood; that while so engaged, about suuris!:: of the morning of the 25th of 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; t'1)lI;t no arrest was made and nomenacillg language was used, andMcMannen voluntarily agreedto ,show them the house of Mr. Hunt, and purpose; that the officers went in· Jront of the offi"cers for that did, not. know thatthe.housethey saw, not far frollthe discovered nace, was the house of McMannen; that the officers had reasonfl,hle grounds for that Mc:h:11111nen,Wben,he reached. the
PICK, J. S,ince hearing the evidence in this case, and the motions
692
FEDERAL REPORTER,
ing to the house, intended to delay or mislead them in their search, ana that when he started to run towards the house his purpose was to communicate information to the illicit distillers in the neighborhood, as the house to which he was going was not far from the place where the deserteddistiHery furnace had been discovered i that when the officers followed. rapidly they had no purpose of doing any violence to McMannen, but merely wished to frustrate his design of communicating information; that the officers did not draw their pistols from· their belts until they saw McMannen' seize the gun on the bed, or on the table, in the housei that McMannen fired the first shot into the face of Kirkpatrick, who fell from his horse, and discharged his pistol while falling, and the ball struck the rock near the door-silli that Patterson then dismounted, went behind the house, entered the back door, and tired the fatal shot as McMannen was presenting his gunand waS about to fire upon Mr. Dickson, who was.'in thb road in ftont of the door. I am not able'to form a defiriite to the place where the ball ehtered the body elf McMannen. From" tlietestimony of Patterson' and from the range' of the ball, McMannen' have been standing with his side towards Patterson. If the left aide .was towards; Patterson, the ball could have· entered the left breast.' If the right side was presented, the ball must have entered del' the shoulder 'blade. I am not able'to form a satisfactory 'opinion as to the ball found in the log in the back side 'of the house. . I feelsme that the ball fired by''Kirkpatrick struck the rock near the door-sill. I have formed these conclusions as to facta from the testimony of Patterson; Cates, and DiCkson, who were present, and had better opportunity of seeing and hearing everything that occurred than Martha McMannen, who wa.s 75: yards distant, Her testimony confirmed the 'statement of theother witnesses as to McMannen presenting the 'gun at Dickson, for she said tha.t when her brother staggered out of the'door he was holding the gun across his breast. A. ,r. Dodson was not examined, but the counsel for the defense stated in open court that hi's testimony would fully sustain the officers who had testified. He was present in court, and the state counsel Md opportunity of examining him. Kirkpatrick was in Baltimore, under the care of a physician. He 'was wounded too severely 'to be before, the court on former occasions. Cates, Dickson, and Dodson in no way counseled or participated in the homicide. They were not summone,d 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 850 yards distant, is merely the expression of an opinion as t:othe 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 thelrepart!! were thus, in some degree, obstructed. The pistol of KirkpatrickwfiS oflarga and was fired in the open air, and may have seemed 1<): be the loudest report to persons at a dis,tance., Such suppesi-
STATE V. KIRKPATRICK.
693
tion reconciles the testimony of the Overakers with that of the officers. Kirkpatrick and Patterson, as revenue officers, were in the performance of official duty. They had received reliable information that there were two illict distilleries in that neighborhood iniull operation. The nature of their duties in searching for illicit distilleries required vigilance, secrecy, and promptitude of action. They had, very early in the morning, reached the neighborhood, and had discovered a furnace from which the still and fixtures had been removed. Thev had found McMannenll.t that early hour near the furnace, observing th;ir movements. From his conversation and action they had reason to suspect his connection or sympathy with illicit distillers. When he ran towards the house,which was near to .the discovered furnace, without any explanation of such conduct, they had reason to suspect an evil motive, and had a right to keep him in view fOr the purpose of frustrating the suspected that· they did not arrest him., or threaten him with personal violence. 'l'heyhad n'o right to arrest him without a warrant, but they had a right to watch him, and thus keep him from communicating information to violators of the law that would enable them to carry off and condeal their still and fixtures, and escape the legal penalties inourred by criminal misconduct. 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 anfiAiJty of suc!l ofJieers to followaud 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 OIl their nefarious business in secret places, by night and on the Sabbath, and who usually have sentinels and fiignals to give 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, atidit has deprived a faithful revenue officer of the government of his sight, of bis capabilities of supporting his family, and left him only a lite of suffering. Similar cases have often occurred in the course of the enforcement of the internal revenue laws relating to the illicit manufacture. removal, and sale of spirituous liquors. The violators of such laws have fiometimes 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 qlake pr,ovisions 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 enactmen,t sucb Jaws by, the is the' of a necessary, in-
694
herent; and constitutIonal power of nationahovereignty. Fifteen years ago cases'like this caused much political, legislative, and forensic discussion,and Bomeconflict of jurisdiction between state and federal courts, Most of the disturbing and perplexi:ng questionsoflaw involved in such cases have now been authoritatively settled by carefully considered decisions in state and national courts. Tennessee v. Davis, BUpra; South Carolina v. Davis, 107,U. S. 597,2Sup. Ct. Rep. 636; State v. Hoskins, 77N. C. 580; In reNeagle, 39 Fed. Rep. 833.' In the Neagle Case the authorities are ably and fully reviewed, and among others the following principle is·announced: ' '!It is the exclusive province of the United States courts· to ultimately and conclusively determine Rny question'of right,civil or criminal, arising under the laws of the United Statt's. It is therefore the prerogative of the national courts.to construe the national statutl'8, and determine upon habeas corpus whether'8 homicide, for which the petJtioner is charged witb murder by ,the state authorities, Was the result of an 'act done in of a law of the United States,' and, when tlJatquestion has been detetmined 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 Qceurredj and that they' ate rtOt guilty of murder, as charged in the state process under, which they' were arrested, it is ordered that they be discharged.' '\ '
CHAMBERS ,,::McDoUGAL et· at (CircuU Oourt, D. Kansas.' May 22,1890.) L RBJlOVALOP CA17I!lEIl-DJvnSB CITJZB1!1SJJjp..-PRAOTICB.
A petition for the removal of a cause. from the Iltate to tlte federal oourt, on the ground of diverse citizenship stated that' plainti1f was a resident 'of Kansas, and that, defend\lntel were, are, noo-residents, and citizens of states other than will more, appear by the aftldavit of the plainti1f C. for an order of pubhoation 'filed herein,' Snch atfldavit reoited that defendants (giving their names) were non-resic1entB ,and, the, complaint in the cause referred to oertain of defendants as residents of \7ermoD,t and M:issouri. Held, that the diverse ,citizenship of tbeparties suftlclently appeared from the wholereoord, and a motion to rebecause the for removal failed to show the citizenship of defendants shOuld be denied. , ,
a.SAlI&....:JURJSDicTIONAL AMOtmT.
Where the petition itor' removal, in' inch .' case, alleges' that the' action Is on' a fraudulently and to cancel bondlt issued and seof $45,000, aod states that the BIJ;l0unt 10 controversy exoured by it, to interest and. ooats, cAnd theeo'ntroversy is suftlciently Ii!tated io the tQ.remanq ,to the staWoourton the ground that 'tiIle petition 'for rem6val,and t.he recordc1o not show that the amount in controversy ,axeeea. will be dBiIed., ",: .' ',', , The rule that the contl:01 him, and
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'JJl'
a,
will reserve the l:ight and power to M. oharge,cannot prevent a receiver ap-
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