1. Section 643 of the Revised Statutes, which provides for
removing to the circuit court suits or criminal prosecutions
commenced in a state court against "any officer appointed under or
acting by authority of any revenue law, or any person acting under
or by authority of such officer," applies to marshals of the United
States, their deputies and assistants, when engaged in enforcing a
revenue law of the United States.
2. Where such a prosecution is duly removed, the jurisdiction of
the circuit court completely vests, and the subsequent action of
the state court, forfeiting the recognizance of the defendant for
his nonappearance there, is
coram non judice and void.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
Lemuel Davis was indicted for the murder of one Hall in the
Court of General Sessions for the County of Spartanburg, in South
Carolina, in July, 1876, and, being in custody, it was ordered by
the court that he be enlarged on giving bail for his appearance at
the next term of the court, it being required that the bond should
contain a condition that it should be forfeited in case the
prisoner should be ordered beyond the limits of the state by the
proper authority of the army of the United States. He entered into
a recognizance accordingly, the other plaintiffs in error being his
sureties. The prisoner thereafter presented to the Circuit Court of
the United States for the District of South Carolina a petition,
which is set out in the record, as follows:
"UNITED STATES OF AMERICA"
"
District of South Carolina, Fourth Circuit:"
"To the Judges of the Circuit Court:"
"The petition of Lemuel J. Davis, corporal of Company K, 18th
U.S. Infantry, shows:"
"That sometime in February, 1876, he was detailed to serve as
one of a guard of United States soldiers to aid Deputy Marshal
James Jarrett in making the arrest of one Brandy Hall, under a
Page 107 U. S. 598
warrant issued by a United States commissioner for violation of
internal revenue laws as a distiller."
"That said guard of United States soldiers consisted of two men
under the command of First Lieutenant W. A. Miller, 18th United
States Infantry. That said guard, under command of said Lieutenant
Miller, proceeded with Deputy Marshal James Jarrett to the house of
said Brandy Hall, for the purpose of arresting him. That for the
purpose of making the arrest, the house of said Hall was
surrounded. This petitioner was stationed at the back door of the
house for the purpose of guarding the same, and preventing the
escape of said Hall. That the deputy marshal, Jarrett, went to the
front of the house for the purpose of effecting an entrance and
arresting said Hall. That at the time he did so, and while your
petitioner was guarding the back door, said Hall made his escape
through a hole in the side of the house near where petitioner was
standing, sprang past him, frightening his horse, and accidentally
discharging his piece."
"That by the discharge of his said piece, the said Hall was shot
and mortally wounded, and subsequently died of said wound. Your
petitioner shows that at the time of said accident, he was in the
discharge of his duty, and that said shooting of said Hall was
purely accidental, and your petitioner is in no way responsible
therefor. Your petitioner shows that he has been arrested and bound
over for trial in the Circuit Court of the State of South Carolina
for Spartanburg County, for the murder of said Hall."
"That an indictment by the grand jury of that county for the
murder was found at the August term of said court against your
petitioner, and your petitioner was put upon his trial thereon;
that the jury before whom he was tried found your petitioner guilty
of manslaughter; that the court thereupon set aside said verdict
and granted a new trial. Your petitioner shows that he is illegally
and unlawfully held for trial under the order of said court, and
prays your honor to grant a writ to remove said cause for trial in
the circuit courts of the United States for the District of South
Carolina, now being held at Columbia, in said state."
"[Signed] LEMUEL J. DAVIS"
"Personally appears before me Corporal Lemuel J. Davis, who,
being duly sworn, deposes and says the above petition is true of
his own knowledge."
"LEMUEL J. DAVIS"
"Sworn and subscribed before me the second day of December, A.D.
1876."
"[Seal of Court] J. E. HAGOOD"
"
C.C.C. U.S. Dist. of S.C."
Page 107 U. S. 599
"UNITED STATES OF AMERICA"
"
District of South Carolina, Fourth Circuit:"
"EX PARTE LEMUEL J. DAVIS"
"18th U.S. Infantry Petition for habeas corpus"
"I certify that I represented the petitioner upon his trial at
Spartanburg; that I have examined the proceedings against him, and
have carefully inquired into all the matters set forth in the
petition of the said Davis, and believe them to be true."
"WM. E. EARLE"
On the hearing of this petition, December 4, 1876, it was
ordered by the court that a writ of habeas corpus
cum
causa do issue, to be served according to law on the clerk of
the Circuit Court for Spartanburg County, and that the marshal do
take said Corporal Lemuel J. Davis into his custody, to be dealt
with according to law.
On March 12, 1877, an order was made by the Circuit Judge for
the County of Spartanburg in the Court of General Sessions,
reciting that the said Lemuel J. Davis had failed to answer when
called according to his recognizance, and directing process against
him and his sureties to appear and show cause why judgment should
not be confirmed against them, and their recognizance adjudged to
be forfeited.
The plaintiffs in error accordingly appeared and answered the
rule, alleging the removal of the cause into the circuit court of
the United States by the proceedings recited, by reason whereof the
said Lemuel Davis was not bound to appear for trial in the Court of
General Sessions for the County of Spartanburg, and that
consequently there had been no breach of the condition of the
recognizance.
Upon this return to the rule to show cause judgment was rendered
against the plaintiffs in error, which, on appeal to the supreme
court of the state, was affirmed. To reverse that judgment the
present writ of error is prosecuted.
The learned Attorney General of the State of South Carolina, who
appears here on the part of the state, very properly waives all
questions arising in this case which are covered by the decision of
this court in
Tennessee v. Davis, 100 U.
S. 257.
He seeks to distinguish the present case, however, from
that,
Page 107 U. S. 600
upon its circumstances, and claims that Davis was not entitled,
by virtue of the capacity in which he was acting, to the benefit of
sec. 643 Rev.Stat., and to that end maintains the proposition that,
as that section applies only to officers appointed under or acting
by authority of any revenue law of the United States, or any person
acting under the authority of such officers, it cannot be extended
to embrace the case of United States marshals, or their deputies or
assistants, even when they are engaged in the service of process
issued for the arrest of parties accused of violation of the
revenue laws of the United States.
In our opinion the distinction cannot be maintained. A marshal
or deputy marshal of the United States is, it is true, not an
officer appointed under a revenue law; but when engaged officially
in lawful attempts to enforce a revenue law, by the arrest of
persons accused of offenses against it, he is an officer acting
under the authority of that law; for it is that law under which is
issued the process, which constitutes his authority for his
official action. There is, indeed, the general law prescribing the
nature of his duties which requires him faithfully to execute all
lawful process placed in his hands for that purpose; but when
process, issued under a particular law, is lawfully issued to him
for service, in executing it he is acting under the authority of
that law, without which the process would not be valid. It is that
law which he would be compelled to rely on as his justification if
he was sued as a trespasser for executing the process issued for
its enforcement. And the protection which the law thus furnishes to
the marshal and his deputy, also shields all who lawfully assist
him in the performance of his official duty. It is not questioned
that Davis was acting in that capacity. It is true, he was a
noncommissioned officer in the army, detailed as a guard in aid of
the marshal, and acting as one of his
posse commitatus;
but this was before such service became unlawful by the passage of
the fifteenth section of the Army Appropriation Act of June 18,
1878, c. 263. Supp.Rev.Stat. 361.
The prosecution against Davis was removed into the circuit court
in strict compliance with the statute. His petition set out the
necessary facts showing that the homicide which was
Page 107 U. S. 601
charged against him as a crime took place while he was in
discharge of his official duty; it was verified and certified as
required by law. The writ of habeas corpus
cum causa,
which was issued upon it, was the writ prescribed by the act of
Congress in cases of that description, a duplicate of which it
requires shall be delivered to the clerk of the state court, and
thereupon the statute declares that it shall be the duty of the
state court to stay all further proceedings in the cause, and the
prosecution, upon delivery of such process, 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.
When, by virtue of the writ of habeas corpus, the prisoner was
taken into the custody of the marshal, the jurisdiction of the
circuit court of the United States of his person, and of the
indictment against him, was completely vested, and that of the
state courts ceased altogether. The recognizance was an incident
and followed the principal case. The obligation to appear was
transferred with the cause, and he was no longer bound to answer in
the court of original jurisdiction. It would have been unlawful for
his bail to have surrendered him to that tribunal. They were
consequently discharged from the obligation of the recognizance, so
far as it required them to do so, or to answer for the default.
There was, consequently no breach of the bail bond in not appearing
in the state court, and all proceedings to forfeit it and render
judgment upon it against the sureties were
coram non
judice and void. The right to proceed upon it at all against
him or them passed from the state court with the transfer of its
jurisdiction over the person of the prisoner and the indictment
against him.
The judgment of the Supreme Court of South Carolina is
accordingly reversed, and the cause is remanded with instructions
to enter a judgment reversing the judgment of the Circuit Court for
the County of Spartanburg, and directing that court to dismiss the
proceeding upon the recognizance for want of jurisdiction, and it
is
So ordered.