In re Grice

• Decision Date: 22 February 1897
• Docket Number: 2,062.
• Citation: 79 F. 627
• Parties: In re GRICE.
• Court: U.S. District Court — Northern District of Texas

79 F. 627

In re GRICE.

No. 2,062.

United States Circuit Court, N.D. Texas.

February 22, 1897

John D Johnson and Clark & Bolinger, for relator.

M. M Crane, Atty. Gen., and C. F. Thomas, for respondent.

SWAYNE District Judge.

This petition, filed by leave of the court on December 9, 1896, at Waco, in the Northern district of Texas, and subsequently transferred to Dallas for hearing, and filed there December 18, 1896, states:

That the petitioner, Wm. Grice, is a resident of the city and county of Dallas, state of Texas; that he is a citizen of the United States, and is unlawfully restrained of his liberty by John W. Baker, sheriff of McLennan county, Texas, by virtue of a capias issued out of the district court of the 54th judicial district of the state of Texas, at Waco, upon an indictment preferred in the said court against him and other citizens of the United States on the 21st day of November 1894 (No. 871), and entitled 'The State of Texas vs. John D. Rockerfeller and others. ' Said indictment charges that John D. Rockerfeller, Henry M. Flagler, John D Archbold, Benjamin Brewster, Henry H. Rogers, Westley H Tilford, Henry Clay Pierce, Arthur M. Finley, C. M. Adams, J. P. Gruett, E. Wells, Wm. Grice, F. A. Austin, and E. T. Hathaway, did unlawfully agree, combine, conspire, confederate, and engage with Wm. E. Hawkins and divers other persons, to the grand jurors unknown, in McLennan county, Texas, in a conspiracy against trade, with the said Wm. E. Hawkins, and said other persons, creating a trust, by the combination of their capital, skill, and acts with the said Wm. E. Hawkins and other persons, for the purpose, design, and effect to create and carry out restrictions in trade. That said indictment and prosecution has for its exclusive and only basis a certain act of the legislature of the state of Texas entitled 'An act to define trusts, and to provide penalties and punishment of corporations, firms and associations of persons connected with them, and to promote free competition in the state of Texas,' approved March 30, 1889, which act is a public law of the state of Texas. That petitioner was arrested upon a capias issued under said indictment, and entered into recognizance for his appearance, and subsequently appeared, on the 2d day of December, 1895, before the said court; and, said cause having been called for trial, the defendants who had been arrested announced a severance, and his co-defendant E. T. Hathaway was then placed on trial, and by his counsel presented to said court his exceptions to the sufficiency of said indictment, and set up the following causes and exceptions to said indictment, to wit: (1) Because it did not appear from the face of the indictment that an offense against the law had been committed. (2) Because the indictment showed upon its face that the district court of the 54th judicial district had no jurisdiction. (3) Because the act hereinbefore recited was violative of the constitution of the United States, for the reason that said statute discriminated between different classes of citizens of the United States, and denied to certain citizens the equal protection of the law, and proposed to deprive certain citizens of the United States of their liberty, property, privileges, and immunities in a way other than by due course of the law of the land. (4) Because the act of March 30, 1889, was inoperative and void as to persons and citizens resident beyond the territorial limits of Texas. (5) Because said act did not prohibit a trust, or declare it illegal, nor did it declare it an offense, or propose to punish it, but merely defined a trust, without denouncing it, and was therefore not a penal law of the state of Texas, and no prosecution could be maintained under it. (6) Because said indictment showed upon its face that the parties presented were engaged in interstate commerce, within the meaning of the constitution and laws of the United States, and said court had no jurisdiction of any of such matters. Said district court overruled the above objections. The trial proceeded, and on the 12th day of December, 1895, resulted in a verdict of guilty, of the said co-defendant Hathaway, and assessed his punishment at a fine of $50, and judgment was duly entered thereon by the court. That on the 14th day of December, 1895, said co-defendant Hathaway filed his motions for new trial and in arrest of judgment, setting up, among other things, the error of the said court in overruling the exceptions above stated, which motion was overruled on December 16, 1895; and said co-defendant did thereupon prosecute his appeal to the court of criminal appeals of the said state of Texas; said last-named court having final jurisdiction of criminal matters in Texas, and being a court of last resort in said state, to hear and determine the questions therein raised. That under the provisions of the Code of Criminal Procedure of the State of Texas, and the act aforesaid of 1889, said conviction was a felony, and the said Hathaway was subjected to confinement in the common jail of McLennan county, Texas, pending the determination of said appeal. The petition further avers that the appeal of the said co-defendant Hathaway was filed in the said court of criminal appeals at Dallas on or about the 10th day of January, 1896, and on or about the 29th day of the same month said appeal was argued by counsel, both for himself, as appellant, and counsel for the state, and was submitted to the said court for determination. That upon the 24th day of June, 1896, said court of criminal appeals handed down its decision in said cause, wherein it declined and refused to pass upon the exceptions to the sufficiency of the indictment aforesaid, which had been duly raised in the court below, and duly presented to said court by assignment of errors and by argument, and which involved the dearest rights, not only of the said co-defendant Hathaway, who was appellant therein, but of this petitioner, and which appeal called for an adjudication by said court of criminal appeals of the said state of Texas upon said rights. That the said court of criminal appeals decided said appeal was a technical ground of the pleadings; holding, in effect, that because the indictment presented in said cause had failed to charge the appellant Hathaway with having 'knowingly carried out, as agent, the stipulations, purposes, prices, rates, or orders' under said alleged conspiracy, that thereafter the admission of evidence to that effect over the objection of said Hathaway was unwarranted in law, and said conviction was invalid; and thereupon, for said cause, and without considering and determining the rights of said appellant Hathaway as a citizen of the United States under the constitution, said court reversed said judgment, and remanded said cause, for trial de novo, to said district court. 36 S.W. 465. That, since the rendition of said judgment by said court of criminal appeals, two terms of the said district court have been held, one of which is now nearing its close. That this petitioner with his co-defendants have been arrested and placed under recognizance, have stood ready and anxious for trial upon said indictment, yet said cause has not been even called by the court for trial, nor has said cause been set for trial, but same has been permitted to remain on the docket of said court, subjecting this petitioner and his co-defendants, wantonly, to the shame and contumely of an indictment for felony, but denying him and his co-defendants the rights to be heard as a citizen of the United States; and whereby the petitioner as well as his co-defendants are without remedy in the state courts of Texas for the assertion and vindication of their rights under the constitution of the United States. And petitioner further states that on the 24th day of November, 1896, said co-defendant E. T. Hathaway procured from this court his writ of habeas corpus, commanding said John W. Baker, sheriff of McLennan county, to produce before it the body of the said Hathaway and certify to the cause of his detention, which writ was on the same day duly served on the said sheriff, who made return that he held said Hathaway by virtue of a capias issued under the indictment hereinbefore mentioned. Said cause was set for hearing on the 7th day of December, 1896, at Waco, Texas, and due notice thereof given to the state. That said writ was based exclusively upon the ground that he was a citizen of the United States, and that the law under which said indictment had been presented was violative of the constitution of the United States in the particulars stated in his exceptions thereto filed upon the trial of the said cause. That petitioner furhter shows that the prosecuting officer of the state of Texas in the district aforesaid, as petitioner believes, for the purpose of defeating the jurisdiction of the federal court upon the said writ, and for the purpose of preventing this court from passing upon the constitutionality of the rights of the said E. T. Hathaway as a citizen of the United States, did on the 7th day of December, 1896, in said district court, and with the consent of said court, dismiss said indictment and prosecution as to said E. T. Hathaway, co-defendant, but left same to stand unimpaired and unaffected as to this defendant and his other co-defendants; and upon the same day the said sheriff did file his amended return to said writ, wherein he submitted to this court a copy of said judgment of dismissal of the said district court of the state of Texas, and did furhter certify that by reason of said dismissal he claimed no further right and custody of the said Hathaway; and by reason thereof the jurisdiction of this court in the premises was practically and substantially...