Commonwealth of Virginia v. Paul

• Citation: 148 U.S. 107,37 L.Ed. 386,13 S.Ct. 536
• Decision Date: 06 March 1893
• Docket Number: No. 7,7
• Parties: COMMONWEALTH OF VIRGINIA v. PAUL, District Judge
• Court: United States Supreme Court

148 U.S. 107

13 S.Ct. 536

37 L.Ed. 386

COMMONWEALTH OF VIRGINIA

v PAUL, District Judge.

No. 7.

March 6, 1893.

Statement by Mr. Justice GRAY:

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 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, Va., 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, Va.; 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 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 23d, at Abingdon.

On December 19th, 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 accordiangly, tested by Judge Paul, as judge of the district court, and under its seal.

On December 22d, 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 23d, 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.'

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 21st, 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 7th, and was indorsed 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 9th to January 12th 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, Va., 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, Va., 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, Va., it is therefore ordered that the petitioner be recognixed 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, Va.' 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 Fed. Rep. 196.

On May 14, 1892, the jailer moved the district court to amend its orfer of January 12th 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 12th, 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 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 Fed. Rep. 200. The appeal from the order of January 12th 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 vs. Joseph H. Carrico. Indictment for murder from Smyth county court,'—and began, under date...