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
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The prosecution and punishment of crimes and offenses 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,
100 U. S. 257;
Virginia v. Rives, 100 U. S. 313;
Davis v. South Carolina, 107 U. S. 597;
In re Neagle, 135 U. S. 1;
Huntington v. Attrill, 146 U. S. 657,
146 U. S.
672-673.
In the case at bar, Joseph H. 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 offense, 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 Virginia, 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
Page 148 U. S. 115
civil suit or criminal prosecution . . . commenced in any court
of a state against any officer appointed under or acting by
authority of any revenue law of the United States now or hereafter
enacted, or against any person acting under or by authority of any
such officer, on account of any act done under color of his office,
or of any such law, or on account of any right, title, or authority
claimed by such officer or other person under any such law."
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
Page 148 U. S. 116
upon its clerk of the appropriate process, whether certiorari or
habeas corpus cum causa, has notice of the filing of the
petition in the circuit court. But it is only after such formal
notice has been given that the jurisdiction is transferred from the
state court to the national court. The proceedings under this
section differ from those under section 641, in which the petition
for removal is required to be filed in the state court, and is of
itself notice to that court, and therefore, "upon the filing of
such petition, all further proceedings in the state court shall
cease," and if the petition shows a sufficient ground for removal,
the case is, in legal effect, removed.
Virginia v. Rives,
100 U. S. 313,
100 U. S. 316.
But under either section, the jurisdiction of the state court is
not taken away until it has notice in one form or other of the
petition for removal -- under section 641 by the petition filed in
that court; under section 643, by notice from the clerk of the
circuit court of the petition there filed.
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 places, 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 court," 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, 1891."
51 F. 202.
But that record evidence, all of which is in the record now
before us, shows only that the petition was filed in the
clerk's
Page 148 U. S. 117
office of the district court on that day, being the same day on
which the order granting the writ of habeas corpus was recorded in,
and the writ issued from, that office. Indeed, the very ground
assigned by the judge in his opinion, just referred to, for
allowing an appeal from just referred to, for allowing an appeal
from writ of habeas corpus issued by him was not ancillary to the
petition for a removal nor issued by the clerk of the circuit
court, as provided in that section. His return to this petition for
a mandamus expressly states that it was not issued under section
643, but under section 753, and the memorandum, inserted at the
beginning of the record of the proceedings in the circuit court on
the indictment describes that order as an order of the district
court, removing the prosecution of the Commonwealth of Virginia
against Carrico into the circuit court.
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.
Page 148 U. S. 118
The inference appears to be inevitable that the only foundation
of the exercise of jurisdiction by the circuit court over this
indictment was a petition filed in the district court, and orders
made and recorded in that court, and that no petition for removal
was ever filed in the clerk's office of the circuit court, and no
writ of certiorari or
habeas corpus cum causa was ever
issued by the clerk, as clerk of that court, and served on the
state court, as required by section 643 of the Revised Statutes in
order to take away the jurisdiction of the state 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 offense. Code Virginia, 1887, §§ 3990,
3955-3971, 4016.
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, "awaiting a 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
Page 148 U. S. 119
the constable. There was no case pending in the county court,
and the justice had not even committed the prisoner to await the
action of that court, and no indictment was found, or other action
taken, in the county court until after the petition had been filed
in the federal court.
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 offense 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, 4 Woods 513;
Georgia v. Bolton, 11 F. 217;
North Carolina v. Kirkpatrick, 42 F. 689. But the only
authorities there cited which afford any color for that conclusion
were English decisions that the preliminary arrest upon the warrant
of a justice of the peace took a case out of the statute of
limitations, defining the time after the commission of the offense
within which "the prosecution shall be commenced."
Rex v.
Willace, 1 East P.C. 186;
The Queen v. Brooks, 1
Denison Cr.Cas. 217, 2 Car. & K. 402. The question whether the
government has taken such action as will stop the running of a
statute of limitations is quite different from the question when a
prosecution can be deemed to be commenced within the meaning of the
acts of Congress authorizing removals from the state courts into
the courts of the United States for trial.
A grand jury, whether of the state or of the United States, is
impaneled and sworn to inquire into and present offenses
Page 148 U. S. 120
against that government only under whose authority it is
summoned. Story on the Constitution § 1784. The grand jury summoned
and impaneled under the authority of a state is the only
appropriate body to inquire into any offense against the state and
to find or to ignore an indictment therefor. The duty of the grand
jury attending a court of the United States is limited to inquiring
into and presenting offenses against the laws of the United States,
and its proper advisers, in matters of law, are the court and the
attorney of the United States.
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, 100 U. S. 257,
100 U. S. 271.
But 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
Page 148 U. S. 121
against him, and by the right to apply to any court or judge of
the United States for a writ of habeas corpus, under sections
751-753, whenever he "is in custody for an act done or omitted in
pursuance of a law of the United States."
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 641 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 offense, 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
Page 148 U. S. 122
bill of indictment before a grand jury of the United States
court for a breach of the peace of the state, it would present a
truly anomalous proceeding. Yet without it, there would be no case
to try in the circuit court. If a bill of indictment had been found
in the state court, it would have presented such a case, but until
this is done, there is no case pending in the court of Bucks county
which can be removed to this Court for trial."
Commonwealth v. Artman, 3 Grant 436, 5 Phila. 304.
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 depends upon the
statements made in the petition for removal and verified by the
oath of the petitioner.
Virginia v. Rives, 100 U.
S. 313,
100 U. S. 316;
Crehore v. Ohio & Mississippi Railway, 131 U.
S. 240;
Graves v. Corbin, 132 U.
S. 571,
132 U. S.
590.
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.
Page 148 U. S. 123
310. A stronger case for issuing a writ of mandamus can hardly
be imagined. The writ may be directed to the judge who has
unlawfully assumed jurisdiction of the prosecution, and no previous
motion to him to remand the case was necessary. The case is
governed in every particular by
Virginia v. Rives,
100 U. S. 313,
100 U. S. 316,
100 U. S.
323-324.
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 Monday, May 16th, 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, 1892, 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 as by the return to the rule to
show cause, an ordinary writ of habeas corpus issued by the
district judge upon the ground
Page 148 U. S. 124
that the prisoner was in custody for an act done in pursuance of
a law of the United States, the question whether good cause was
shown for his discharge was to be judicially determined by the
judge in the exercise of the jurisdiction vested in him by sections
751-753 of the Revised Statutes. His determination might have been
reviewed, on the facts as well as the law, by appeal. Rev.Stat. §§
760-766; Acts of March 3, 1885, c. 353, 23 Stat. 437; Acts of March
3, 1891, c. 517, §§ 5, 6, 26 Stat. 827, 828;
In re Neagle,
135 U. S. 1;
Horner v. United States, 143 U. S. 570,
143 U. S. 576.
But it cannot be reviewed or controlled by writ of mandamus.
Ex
Parte Schwab, 98 U. S. 240;
Ex Parte Perry, 102 U. S. 183;
Ex Parte Morgan, 114 U. S. 174;
In re Morrison, 147 U. S. 14,
147 U. S.
26.
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 H. Carrico to the
County Court of Smyth County.
