55 F.2d 371 (D.Colo. ), 7000, Ex parte Dierks

Docket Nº:7000.
Citation:55 F.2d 371
Party Name:Ex parte DIERKS.
Court:United States District Courts, 10th Circuit, District of Colorado

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55 F.2d 371 (D.Colo.)

Ex parte DIERKS.

No. 7000.

United States District Court, D. Colorado.

Date Not Given

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Ralph L. Carr, U.S. Atty., of Denver, Colo., for petitioner.

Joel E. Stone, Dist. Atty., and Charles T. Mahoney, both of Denver, Colo., for the State of Colorado.

SYMES, District Judge.

November 13, 1931, Henry Dierks filed his petition in this court, asking for a writ of certiorari and habeas corpus cum causa. Section 33, Judicial Code, section 76, tit. 28 USCA. Briefly, the petition alleges that on the 9th day of November, 1931, a criminal proceeding was commenced against him in the state district court for the First judicial district of Colorado, county of Arapahoe, by the filing of an information charging that the petitioner on the 7th of November, 1931, feloniously, unlawfully, etc., killed and murdered one Melford Smith; that he had been arrested pursuant thereto, admitted to bail, and that said criminal proceeding was still pending, and there had been no trial or final hearing.

He further shows that prior to November 7, 1931, and on that date, he was a federal officer, acting under authority of the revenue laws of the United States, to wit, a prohibition agent, and the act for which he was informed against and held in the state court was performed while engaged in the discharge of his duties as such prohibition agent.

The facts set forth are: That on November 7, 1931, he, together with Prohibition Agent Ellsworth, was directed by his superior to investigate a complaint of violations of the national prohibition law reported as being committed at No. 3005 South Broadway, Englewood, Arapahoe county, Colo.; that pursuant thereto petitioner and Ellsworth proceeded to the said location, a public restaurant, or so-called 'hamburger' stand; that he entered, informed the proprietor, or man in charge, that he was a federal prohibition agent, at the same time exhibiting his badge, stating that he had come to investigate alleged violations of the Prohibition Act (27 USCA) on the premises and desired to look around; that the said proprietor, or person in charge, gave permission so to do; that thereupon one Melford Smith, a young man, entered the premises, walked to the rear, and seating himself on an unoccupied stool at the customers' counter, took out a pint bottle of wine from his coat pocket, set it on the counter in full and open view of petitioner, and proceeded to look around for a drinking glass; that petitioner, observing this action and the wine, and believing that said Smith was engaged in violation of the prohibition act and internal revenue laws of the United States, attempted to take possession of the wine and arrest said Smith; that said Smith resisted arrest, attempted to destroy the bottle, and did proceed to assault your petitioner and attempt to escape. Further, that a bystander, one Green, attempted to assist Smith to assault petitioner and to help him to escape, and that in the scuffle that ensued, and while petitioner was engaged in the discharge of his official duties in making, and attempting to make, said arrest of Smith, and protecting himself in the discharge of his duties, and in seizing said wine, it became necessary, in order to subdue said Smith, for petitioner to strike, and he did strike, said Smith on the head with his gun; that thereupon the said prohibition agent Ellsworth came to the assistance of petitioner and they arrested Smith and others who had taken a part in the affray, placed them in jail pending the filing of charges for violation of the prohibition act and for assaulting an officer of the United States; that at the time said Smith was placed in the jail of the city and county of Denver he did not appear to have received any serious injury, but on the following day, after spending a night in jail, he became sick and died. Petitioner is informed-- and on information and belief alleges-- that said Smith died from an injury to his head, caused by a blow given to said Smith by petitioner during the scuffle aforesaid; that said charge of murder referred to is based entirely upon the circumstances surrounding said injury and subsequent death of Smith as related.

Petitioner further alleges that he is not guilty of the crime of murder, or any other offense under the laws of the state of

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Colorado; that said criminal proceeding referred to arises solely out of the acts performed by said petitioner as an officer acting under the revenue laws of the United States, and while acting as United States prohibition agent.

On presentation of the petition this court issued a writ of habeas corpus cum causa, which was served upon the clerk of the state court, and agreeable thereto, the record and proceedings of said cause in the state courts were transmitted here. The matter is now before the court on motion of the state district attorney for the county of Arapahoe to quash the writ and remand the cause.

This motion sets up numerous grounds, but without enumerating them in detail, it may be said that the main contention is that the petition does not bring the case within section 33 of the Judicial Code of the United States (tit. 28, Sec. 76, USCA).

Let us look at the statute: '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, 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 * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court...

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