Commonwealth of Kentucky v. Powers

• Decision Date: 07 July 1905
• Citation: 139 F. 452
• Parties: COMMONWEALTH OF KENTUCKY v. POWERS.
• Court: U.S. District Court — Eastern District of Kentucky

139 F. 452

COMMONWEALTH OF KENTUCKY v. POWERS.

United States Circuit Court, E.D. Kentucky.

July 7, 1905

R. B Franklin, C. J. Bronston, N. B. Hays, and Lawrence Maxwell Jr., for the Commonwealth.

R. D Hill, Richard Yates, Frank S. Black, J. C. Sims, H. C Howard, and R. C. Kinkead, for defendant.

COCHRAN District Judge.

This is a criminal prosecution by the commonwealth of Kentucky against Caleb Powers for the offense of having been an accessory before the fact to the willful murder of William Goebel, assassinated January 30, 1900, at Frankfort, Franklin county, within the Eastern District of Kentucky, which prosecution was begun and for some time has been pending in the courts of said commonwealth, but which said defendant, Powers, claims has been removed to this court by appropriate proceedings. It is before me now on his motion for the issuance of habeas corpus cum causa to take him from the commonwealth's custody, where he has been since two days after the beginning of the prosecution, and place him in that of the United States, to await further proceedings therein in this court. The commonwealth of Kentucky, by its Attorney General and employed counsel, objects to this motion. The ground of its objection is that jurisdiction of the prosecution has not been removed from the state court to this court by said removal proceedings. It is in effect a motion to remand.

The statute under which said proceedings were had is section 641, Rev. St. U.S. (U.S. Comp. St. 1901, p. 520). This statute originated in section 3 of the original civil rights act of April 9, 1866 (14 Stat. 27, c. 31), was re-enacted in section 18 of the act of May 31, 1870 (16 Stat. 144, c. 114), re-enacting said civil rights act after the adoption of the fourteenth amendment, July 21, 1868, and was carried from thence into the revision of 1873-74 as section 641 thereof. By section 5 of the jurisdictional acts of March 3, 1887 (24 Stat. 555, c. 373), and August 13, 1888 (25 Stat. 436, c. 866 (U.S. Comp. St. 1901, p. 515)), it was provided that nothing in said acts should be held, deemed, or construed to repeal or affect any jurisdiction or right mentioned in said section 641; section 642, providing for the issuance of the writ of habeas corpus cum causa sought herein; section 643, providing for removal of civil suits and criminal prosecutions in a different state of case then that provided in section 641, to which reference will be made further on, and other statutes not necessary to be referred to here. That portion of section 641 material to quote is as follows:

'When any civil suit or criminal prosecution is commenced in any 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 such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the Unites States * * * such suit or prosecution may, upon the petition of such defendant filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state courts shall cease and shall not be resumed except as hereinafter provided.'

The remaining portion of the section provided for filing the transcript of the record in the state court in the Circuit Court of the United States, and for docketing the cause therein. Before stating the proceedings which have been had under said section, and considering their effect upon the jurisdiction of said prosecution, it will be well to do two things. One is to realize the constitutionality of said section, and to come to an understanding as to the basis thereof. This understanding will aid in its construction when we come to take that matter up. Its constitutionality was directly upheld in the case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, and assumed in the case of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, decided the same day, and in the cases of Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Kentucky, 107 U.S. 110, 1 Sup.Ct. 625, 27 L.Ed. 354; Gibson v. Mississippi, 162 U.S. 592, 16 Sup.Ct. 900, 40 L.Ed. 1082; Murray v. Louisiana, 163 U.S. 101, 16 Sup.Ct. 990, 41 L.Ed. 87; Williams v. Mississippi, 170 U.S. 213, 18 Sup.Ct. 583, 42 L.Ed. 1012-- decided subsequently. Its peculiarity, causing one to want to understand as to its constitutionality, if not to question it, consists in the fact that it provides for the removal of a state prosecution for a state offense pending in a state court to a federal court. Section 643, heretofore referred to, is like it in this particular. It, too, provides for the removal of a state prosecution for a state offense pending in a state court to the federal court, but in a different state of case from that provided in section 641. That state of case is when the prosecution is 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 the 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,' etc. This statute originated, about the same time as that contained in section 641, in section 67 of the act of July 13, 1866 (14 Stat. 171, c. 184), and was carried from thence into the revision of 1873-74 as section 643. On the same day that section 641 was held to be constitutional, to wit, in the case of Strauder v. West Virginia, supra, section 643 was held to be constitutional, also, in the case of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648. That day was March 1, 1880. It may be said to have been a great day in the history of federal jurisprudence. On the same day, section 4 of the act of March 1, 1875 (18 Stat. 336, c. 114 (U.S. Comp. St. 1901, p. 1261)), making it an offense against the United States, punishable in its courts, for a state officer or other person charged with any duty in the selection or summoning of jurors in state courts to exclude or fail to summon any citizen possessing all other qualifications prescribed by law on account of race, color, or previous condition of servitude, was held to be constitutional in the case of Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676. At the same time section 641 was construed not only in Strauder v. West Virginia, supra, but also in Virginia v. Rives, supra. A vigorous attack was made in said four cases thus disposed of on the same day upon the constitutionality of said sections 641 and 643 and section 4 of the act of March 1, 1875, by Justices Field and Clifford, and they dissented from the conclusion of the majority of the court as to the constitutionality of each statute. Justice Clifford wrote the dissenting opinion in Tennessee v. Davis, and Justice Field that in Ex parte Virginia. Their views as to the constitutionality of section 641 were embodied in a separate opinion by Justice Field in Virginia v. Rives, in which concurrence was expressed with the opinion of the majority of the court in that case as to the construction of section 641, and its applicability to a case of that kind. The ground of their attack upon all three statutes was, in substance, that they were an invasion of the sphere of state action, there being nothing in the federal Constitution to warrant them. In the case of Ex parte Virginia, Justice Field, in referring to the criminal prosecution of a state officer in a federal court under section 4 of the act of March 1, 1875, said:

'The proceeding is a gross offense to the state. It is an attack upon her sovereignty in matters over which she has never surrendered her jurisdiction. The doctrine which sustains it, carried to its logical results, would degrade and sink her to the level of a local municipal corporation.'

In the case of Tennessee v. Davis, Justice Clifford said:

'Viewed in any light, the proposition to remove a state indictment for felony from a state court having jurisdiction of the case into the Circuit Court, where it is substantially admitted that the prisoner cannot be tried until Congress shall enact some mode of procedure, approaches so near to what seems to me both absurd and ridiculous that I fear I shall never be able to comprehend the practical wisdom which it doubtless contains.'

Both judges had much to say as to the mode of procedure in the federal courts after the removal thereto of a criminal prosecution pending in the state court under either section 641 or 643. Justice Field, in Virginia v. Rives, said:

'There are many other difficulties in maintaining the position of the Circuit Court, which the counsel of the accused and the Attorney General have earnestly defended. If a criminal prosecution of an offender against the laws of a state can be transferred to a federal court, what officer is to prosecute the case? Is the attorney of the commonwealth to follow the case from his county, or will the United States district attorney take charge of it? Who is to summon the witnesses and provide for their fees? In whose name is judgment to be pronounced? If the accused is convicted and ordered to be imprisoned, who is to enforce the sentence? If he is deemed worthy of executive clemency, who is to exercise it-- the Governor of the state, or the President of the United States? Can the President pardon for an offense against the state? Can the Governor release from the judgment of a federal court? These and other questions which might be asked show, as justly observed by the counsel of

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