Bush v. Commonwealth of Kentucky

Citation1 S.Ct. 625,27 L.Ed. 354,107 U.S. 110
Decision Date29 January 1883
CourtUnited States Supreme Court

L. P. Tarleton, Jr., for plaintiff in error.

I. D. Hunt and W. C. P. Breckinridge, for defendant in error.


This court shares the regret expressed by counsel that the record is in some respects so meager, and in other respects so confused, that it is impossible to ascertain what facts were before the inferior state court when it passed certain orders that are commented upon in argument. Some of those orders refer to affidavits and other documents that are not made in any form a part of the record. The difficulties in our way have been, in part, removed by the frank concessions of counsel on both sides, and we cheerfully acknowledge the aid we have received from them in our search through the record for the substantial questions to be determined. We may also add that our embarrassment has been increased by the consideration that the case is one of no small moment, involving, as it does, on the one hand, the life of a citizen, and, on the other, the question whether the judicial tribunals of a state have denied to a prisoner rights guarantied by the constitution of the United States. Whether the record before us shows such a denial we will now proceed to inquire.

John Bush, a citizen of African descent, was indicted in 1879, in the circuit court for Fayette county, Kentucky, for murder. Upon his first trial the jury, as was stated by counsel, being unable to agree, were discharged. At the next trial he was found guilty and was condemned to suffer death. Upon appeal to the court of appeals of Kentucky that judgment was reversed and a new trial was ordered for errors committed by the court of original jurisdiction: First, in neglecting to instruct the jury as to involuntary manslaughter, as distinguished from murder, the evidence being such as to authorize the jury to find the accused guilty of either offense; second, in the definition of malice given to the jury; third, in failing properly to instruct the jury whether the death of the deceased was necessarily or probably caused by the wound, or ensued from scarlet fever negligently communicated by her physician. Bush v. Com. 75 Ky. 268.

Upon the return of the case to the inferior state court the accused, as we infer from the record, filed a petition for its removal into the circuit court of the United States. That petition, we are informed by counsel, was filed May 24, 1880. It, however, is not in the record. We assume that it was based upon section 641 of the Revised Statutes of the United States, which authorizes, in general, the removal into such court of any criminal prosecution, commenced in a state court, for any cause whatever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where the prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The record, however, does state that copies of all the proceedings in the inferior state court were filed by the accused in the federal court, and that he was brought before the latter tribunal upon writ of habeas corpus addressed to the jailer having him in custody.

On the nineteenth day of October, 1880, the accused, by his counsel, moved in the federal court that the trial proceed. That motion was denied, and the response by the jailer to the writ of habeas corpus was adjudged to be insufficient. The reasons which controlled this action are set forth in the following order:

'And it appearing to the court, from the transcript of the record heretofore filed, that the indictment herein was found by a grand jury summoned under and in accordance with the provisions of section 1, c. 62, Gen. St. Ky., which exclude all other than white citizens from being summoned, or serving thereon, the court is of opinion that said law is a violation of the four-teenth amendment to the constitution of the United States, and orders said indictment quashed. The marshal of the court is ordered to return the said John Bush to Lexington, Kentucky, as speedily as possible, and there release him. He will, however, before setting him at liberty, notify the commonwealth's attorney; or, in his absence, the county attorney; or, in his absence, the county judge. This notice shall be in writing, stating the time and place of his release, and he will report his action to this court. The defendant excepts to so much of this order as requires his return to Lexington, Kentucky.'

The accused was subsequently rearrested by the state authorities, and a new indictment was returned for the same offense. At the term of the court held on the sixth of December, 1880, he tendered an affidavit, stating that 'on the fourth day of February, 1879, the grand jury of Fayette county returned into this court an indictment charging him with the same offense, and upon the same statement of facts charged herein; that he, as he had a right to do under the 641st section of the Revised Statutes of the United States, filed in this court his petition for a transfer of his case to the United States circuit court for this district for trial under said indictment; that the prayer of his petition was granted by said circuit court, on which, under said statute, all further proceedings were to cease forever; that the jurisdiction of said United States circuit court, to which, under said statute, this cause was removed for the trial of this offense, is superior to and in exclusion of that of this court, and, that court having taken jurisdiction, this court has no jurisdiction to try the same.' Copies of the orders of the United States circuit court were made part of that affidavit. The court refused its permission to file such affidavit, and to that ruling the accused excepted. The case was then continued to the succeeding February term, when a special venire issued, commanding the sheriff to summon '150 good and lawful jurors from whom to select a jury for the trial of this [Bush's] case.' But at that term the prosecution was continued, and on May 16, 1881, the case being again called for trial, the sheriff was ordered to summon 'a panel of 75 additional jurors from whom to select a jury for the trial of this case, and in executing this order he will proceed in his selections without regard to race, color, or previous conditions of servitude.'

We next find in the record of proceedings in the state court, under date of May 18, 1881, this order:

'And afterwards, at a term of said court held for said circuit, May 18, 1881, the commonwealth came, by attorney, and the defendant appeared in custody. The defendant moves the court to set aside the indictment herein against him, because there was a substantial error committed to his prejudice in the selection and formation of the grand jury which found said indictment, in that the said grand jury was selected and formed in violation of the constitution of the United States, and therefore is unconstitutional, null, and void, because all citizens of the United States and state of Kentucky, and resident in Fayette county, who were not of the class known as white, though eligible for such service, were excluded from the lists from which said grand jury was selected, and thereby the rights, privileges, and immunities of all such citizens so residing, who did not belong to the class known as white, and of the defendant who is not white, although a citizen of the United States and of Fayette county, Kentucky, were abridged, because he and they are not white, and on account of his and their race and color, contrary to the constitution of the United States and the laws in such cases made and provided; which was overruled by the court, and defendant excepts.'

The accused then moved to set aside the panel of petit jurors, upon grounds set forth in the following order entered on the same day:

'The defendant now moves the court to set aside the panel of petit jurors selected and summoned to try him herein, because there was a substantial error committed to his prejudice, in that said jurors were not summoned as required by law, in that all citizens of the United States and state of Kentucky, resident in Fayette county, of the African race, of which there are very many eligible and qualified to serve as jurors in Fayette county, and to which race this defendant belongs, were excluded and not summoned by the officers whose duty it was to select and summon said panel to serve on said panel from which the jury to try defendant was to be selected, but only such citizens eligible and qualified which belonged to the class known as white were selected and summoned by such officers. Defendant filed a petition for the transfer of this case to the circuit court of the United States for Kentucky; which motion was overruled, and defendant excepts.'

The trial proceeded, and the jury returned a verdict of guilty of murder, and, under the power vested in them by the laws of Kentucky, fixed the punishment at death. A judgment having been rendered accordingly, a motion for a new trial was made and overruled. Upon appeal to the court of appeals the judgment was affirmed.

This statement of facts is quite sufficient to indicate the grounds upon which we rest our determination of such of the questions raised by the assignment of errors as we deem it necessary to consider.

1. The proposition in behalf of the accused to which we will first direct our attention is that the removal of the prosecution, under the first indictment, into the circuit court of the United States—although the indictment was there quashed—operated to divest the state court of all jurisdiction thereafter under any circumstances whatever, to try him for the crime charged. Such a construction of section 641 is wholly inadmissible. The prosecution against Bush could only have commenced in the...

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