Virginia v. Paul
148 U.S. 107 (1893)

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U.S. Supreme Court

Virginia v. Paul, 148 U.S. 107 (1893)

Virginia v. Paul

No. 7, Original

Submitted January 30, 1893

Decided March 6, 1893

148 U.S. 107

Syllabus

Under section 643 of the Revised Statutes, the jurisdiction of the state court is not taken away until a petition for removal is filed in the circuit court of the United States, and a writ of certiorari or of habeas corpus cum causa issued by the clerk of that court and served upon the state court or its clerk.

A prosecution of a crime against the laws of a state, which must be prosecuted by indictment, is not commenced, within the meaning of section 643 of the Revised Statutes before an indictment is found, and cannot be removed into the circuit court of the United States by a person arrested on a warrant from a justice of the peace with a view to his commitment to await the action of the grand jury.

Mandamus lies in behalf of a state to compel the remanding to one of its courts of a criminal prosecution there commenced, and of which the circuit court of the United States has assumed jurisdiction, at the defendant's suggestion, without due proceedings for removal.

Mandamus does not lie to review an order on a writ of habeas corpus, under sections 751-753 of the Revised Statutes, discharging a prisoner from commitment under authority of a state on the ground of his being in custody for an act done in pursuance of a law of the United States.

This was a petition by the Commonwealth of Virginia to this Court for a writ of mandamus to the Honorable John Paul, District Judge of the United States for the Western District of Virginia, and holding the circuit court of the United States for that district to command him to remand

Page 148 U. S. 108

to the County Court of Smyth County, in Virginia, an indictment against Joseph H. Carrico for the murder of James M. Nelson, found by the grand jury of the county and by them returned into the county court, and of which the circuit court of the United States had assumed jurisdiction, and also to command him to restore the body of Carrico to W. D. Wilmore, the jailer of the county, from whose custody he had been taken upon a writ of habeas corpus issued by said judge.

Annexed to the petition was a copy of the record of the district court of the United States in the proceedings for habeas corpus, as well as a copy of the record of the circuit court of the United States in the proceedings concerning the indictment.

The record of the district court set forth the following proceedings: on December 18, 1891, in vacation, Carrico presented to Judge Paul a petition addressed to him as "judge of the United States circuit court," alleging

"that on December 12, 1891, one Kirk, a justice of the peace of Smyth County, Virginia, issued his warrant in the name of the Commonwealth of Virginia, addressed to Constable Scott of the said county, commanding him to arrest your petitioner and bring his body before said justice for willfully, premeditatedly, and of malice aforethought killing and murdering one James M. Nelson in the said County of Smyth, on December 11, 1891, and upon said warrant the said constable Scott did arrest your petitioner late on Saturday evening, December 12, 1891, and delivered him to W. D. Wilmore, the jailer of Smyth County, Virginia, and your petitioner is now confined in the jail of Smyth County at Marion, awaiting a trial before said justice upon the said charge of murder."

The petition further alleged that no murder was committed, but that the killing was done by the petitioner in self-defense, in the performance of his duty as a deputy of the marshal of the district, acting by and under the authority of the internal revenue laws of the United States, and in attempting to arrest Nelson while violating those laws by having in his possession, and selling, illicit ardent spirits. "In view of these facts, under section 643 of the Revised Statutes of the United States," the petition prayed that

"said

Page 148 U. S. 109

cause may be removed from the jurisdiction of the said Kirk, Justice of the Peace of said County of Smyth, and from the county court of said county, to the Circuit Court of the United States for the Western District of Virginia, for trial;"

that a writ of habeas corpus cum causa might be awarded, and a duplicate thereof delivered to the clerk of the county court, and that by virtue thereof, the marshal of the district or one of his deputies might take the body of the petitioner into his custody, to be dealt with in the cause according to law and according to the order of the circuit court, or of a judge thereof in vacation, 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. The petition was verified by the oath of the petitioner, taken before a United States commissioner on December 12th, and annexed to it was a certificate of counsel of the same date in the form required by said section of the statutes.

Upon that petition, and on the same day, Judge Paul made an order entitled "In the District Court of the United States for the Western District of Virginia in vacation," and signed by him as district judge, granting a writ of habeas corpus in common form to the jailer, returnable before him on December 23 at Abingdon.

On December 19, that petition was filed, and the order granting the writ of habeas corpus recorded, in the clerk's office of the district court, and the writ was issued accordingly, tested by Judge Paul, as judge of the district court, and under its seal.

On December 22, the writ of habeas corpus, as appeared by the marshal's return thereon, was executed by delivering copies thereof to the jailer and to the clerk of the county court.

On December 23, at a special term of the district court held at Abingdon, the jailer brought in the body of Carrico and returned that the causes of his detention were a warrant of commitment, a copy of which, marked "Exhibit A," was annexed to and made part thereof, "and the proceedings of the County Court of Smyth and Commonwealth of Virginia, marked Exhibit B' and made part and parcel of this return."

Page 148 U. S. 110

The only exhibit annexed to the jailer's return was marked "Exhibit A," and was as follows:

"Virginia, Smyth County, to-wit: to William Scott, constable of said county, and to the keeper of the jail of said county:"

"These are to command you, the said constable, in the name of the Commonwealth of Virginia, forthwith to convey and deliver into the custody of the keeper of said jail, together with the warrant, the body of Joseph H. Carrico, charged before me, John J. Kirk, a justice of the said county, on the oath of R. W. Nelson, with a felony by him committed, in this: that the said Joseph H. Carrico, on the 11th day of December, 1891, in the said county, feloniously and of his malice did kill and murder one James M. Nelson, and you, the said keeper of the said jail, are hereby required to receive the said Joseph H. Carrico into your jail and custody, that he may be examined for the said offense by the county court of the said county, and him there safely keep until he shall be discharged by due course of law. Given under my hand and seal this, the 14th day of December, 1891."

"John J. Kirk, J.P."

The prisoner was thereupon admitted to bail, with sureties for his appearance, on January 8, 1892, and the case was continued to that day, and again to January 9th, when the jailer was permitted by the court to amend his return by adding Exhibit B, therein referred to, which was a transcript of an indictment against Carrico for the murder of Nelson, returned into the county court by a grand jury of the county on December 21, and of an order made the same day by that court, directing that Carrico, who had been removed to the jail of another county for safekeeping, be conveyed by the sheriff to the jail of Smyth County that he might be tried in the county court on the indictment. This transcript appeared to have been certified by the county clerk on January 7, and was endorsed by the clerk of the district court of the United States as filed in that court on May 17, 1892.

The case was continued from January 9 to January 12,

Page 148 U. S. 111

when the district court, held by Judge Paul, made the following order:

"In this cause, the court having heard the testimony introduced on behalf of the petitioner, as well as that introduced on behalf of the respondent, W. D. Wilmore, Sheriff of Smyth County, Virginia, and the arguments of counsel for the petitioner and respondent, and it appearing to the court that the petitioner is in custody for an act done in pursuance of a law of the United States, and is held in custody contrary to law by the jailer of Smyth County, Virginia, and that he has a right to have removed into the Circuit Court of the United States for the Western District of Virginia the prosecution pending against him in the County Court of Smyth County, Virginia, it is therefore ordered that the petitioner be recognized in the sum of one thousand dollars for his appearance before the circuit court for this district on the first day of the next regular term thereof, to answer the indictment found against him by a grand jury of the County Court of Smyth County, Virginia."

Thereupon Carrico entered into a recognizance accordingly. The record set forth the testimony introduced at that hearing, as well as the opinion then delivered, and published in 51 F. 196.

On May 14, 1892, the jailer moved the district court to amend its order of January 12 so as to allow him an appeal to this Court, and to certify that the question of the jurisdiction of the district court to hear and determine the writ of habeas corpus in the manner it did was alone involved and to be reviewed. The motion was granted upon the grounds that the order of January 12, taking the petitioner from the custody of the respondent, and holding him to answer to the indictment in the United States court, was a final order from which the respondent might appeal to this Court as if it had been an order for the absolute discharge of the prisoner from his custody, and that the writ of habeas corpus was not merely ancillary to the petition for the removal, under section 643 of the Revised Statutes, of the prosecution of Carrico by the State of Virginia, but was a distinct and different proceeding in a different court and under a different statute, and

Page 148 U. S. 112

was not issued by the clerk, as provided in that section, but by the district judge, and on December 18, 1891, "whereas," the judge said,

"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, 1891."

His opinion on this motion is in the record, and is published in 51 F. 200. The appeal from the order of January 12 does not appear to have been prosecuted.

The copy of the record of the circuit court of the United States, annexed to the petition for a mandamus, was of the proceedings at the regular May term 1892, of that court at Abingdon, held by Judge Paul, in the case entitled "Commonwealth of Virginia v. Joseph H. Carrico. Indictment for murder from Smyth County court," and began, under date of Saturday, May 14, with the following memorandum:

"Be it remembered that heretofore the said Joseph H. Carrico presented a petition for the removal of the case aforesaid, and herein charging him with the murder of James M. Nelson, from the County Court of Smyth County, Virginia, to the Circuit Court of the United States for the Western District of Virginia at Abingdon, Virginia, and for a writ of habeas corpus, to the judge of the District Court of the United States for the Western District of Virginia, and upon return of W. D. Wilmore, jailer of Smyth County, Virginia, and upon the hearing of the evidence and arguments of counsel, an order was entered in the said District Court of the United States for the Western District of Virginia on January 12, 1892, removing the said prosecution of the Commonwealth of Virginia v. Joseph H. Carrico into the Circuit Court of the United States for the Western District of Virginia, in the Fourth Circuit at Abingdon, Virginia, for further proceedings and trial, and said indictment, with the endorsements thereon, is in the words and figures following, viz.: . . ."

Then followed a copy of the indictment, with the endorsement "A true bill" by the foreman of the grand jury, and also endorsed as "a transcript from the record" by the clerk of the county court. The record of the circuit court further showed that on May 14, the Attorney General of Virginia and

Page 148 U. S. 113

the county attorney came in, and that the prisoner appeared, as required by his recognizance, was arraigned upon the indictment, pleaded not guilty, was tried by a jury, and on Monday, May 16, found guilty of voluntary manslaughter, and that on May 17 the court, upon his motion, set aside the verdict and granted a new trial, continued the case to the next term, and admitted him to bail upon his own recognizance.

Upon motion of the Commonwealth of Virginia on the first day of this term, and before any further proceedings were had in the circuit court, this Court gave leave to file the petition for a mandamus, and granted a rule to Judge Paul to show cause why a writ of mandamus should not issue as prayed for.

The judge, in his return to the rule, referred to the petition for removal and for a writ of habeas corpus, and the proceedings concerning the habeas corpus and those upon the indictment, as appearing in the copies of records annexed to the petition for a mandamus, set forth the grounds of his action substantially as in his opinions above mentioned, and specifically stated that the writ of habeas corpus was issued not under section 643 of the Revised Statutes, but under section 753, which authorizes the writ when a prisoner "is in custody for an act done or omitted in pursuance of a law of the United States."

It was alleged in the petition for a mandamus, and in the brief for the petitioner, and was not denied in the judge's return or in the brief of his counsel, that when the case of the indictment was called for trial in the circuit court of the United States, a motion was made by the Commonwealth of Virginia to remand the case to the county court because the circuit court had no jurisdiction over the crime charged in the indictment, and because the removal of the prosecution from the county court was not authorized by law, but was contrary to the Constitution and laws of Virginia and to the Constitution and laws of the United States, and that this motion was denied by the circuit court.

Page 148 U. S. 114

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