Ex parte Morrill

• Decision Date: 18 June 1888
• Citation: 35 F. 261
• Parties: Ex parte MORRILL.
• Court: U.S. District Court — District of Oregon

35 F. 261

Ex parte MORRILL.

United States Circuit Court, D. Oregon.

June 18, 1888

Lewis L. McArthur, for petitioner.

Alfred F. Sears, Jr., for respondent.

DEADY J.

On June 4, 1888, the petitioner, Eli Morrill, was arrested by a police officer of this city, and lodged in the county jail on a charge of assault and battery.

He immediately applied by petition to the United States district judge for a writ of habeas corpus, alleging in his petition that he was a deputy United States marshal for the district of Oregon; that in the discharge of his duty as such deputy he was about to arrest a person for aiding and abetting an illegal voter in casting a vote for a representative in congress, at polling place 3, in South Portland precinct, at an election for such representative then and there being held, when he was arrested by Samuel Parrish without authority of law, and delivered to the custody of the sheriff of Multnomah county and his jailer. The writ was allowed, and made returnable forthwith in the United States circuit court then in session.

The respondent, H. C. Wood, the jailer of Multnomah county immediately produced the body of the petitioner in court with the original warrant on which the arrest was made, when by consent of parties the respondent had until June the 7th to make a formal return to the writ, and the petitioner until the following day to reply thereto, when the cause should be heard; whereupon an order was made admitting the petitioner to bail in the sum of $500.

On June the 8th the parties appeared, and witnesses were sworn and testified for and against the petitioner on the question of the alleged assault and battery, and the alleged grounds of the arrest by the petitioner of Walter F. Matthews, for aiding and counseling a person to vote at said election who had no legal right to vote.

From the admissions in the pleadings and the evidence I find the following facts:

The petitioner, Eli Morrill, on June 4, 1888, was a duly-appointed and qualified special deputy-marshal of the United States for the city of Portland, Or., a city of more than 20,000 inhabitants, under section 2021 of the Revised Statutes, and was authorized to perform the duties and exercise the powers of such deputy at an election for representative in congress then being held in said city; that about 10 o'oclock of said day the petitioner, having good reason to believe, from his observation and knowledge, that one Matthew or Mace Cetel or Tetel had voted illegally at said election at polling place 4 in South Portland precinct, the fact being, as it now appears, that said Cetel is an unnaturalized alien who had not even declared his intention to become a citizen of the United States, arrested him therefor without a warrant, and took him before a United States commissioner in the United States court-rooms, in said city, and there made a complaint against him to that effect; that soon after the arrest of Cetel the petitioner, having good reason to believe, from his observation and knowledge, that J. L. Carrol and Walter F. Matthews did aid and counsel said Cetel to so vote illegally, arrested them therefor, the latter being arrested in the hall outside of the door of the marshal's office, whither he had gone to go bail for Carrol, by the petitioner placing his hand on his shoulder, without violence or rudeness, and telling him he was under arrest, and asking him to walk into the office, where he remained until he gave bail; that soon after Matthews was discharged he went before the police judge of the city, having the jurisdiction of a justice of the peace, and made a complaint under oath, accusing the petitioner of the 'crime of assault and battery,' committed as follows: 'The said Eli Morrill, on the 4th day of June, 1888, in the city of Portland, * * * did willfully and unlawfully assault and beat' said Matthews; the fact being that the petitioner did not 'beat' said Matthews, or lay his hand on him, otherwise than as above stated; that on this information said judge issued a warrant for the arrest of the petitioner for the crime of assault and battery, returnable before himself forthwith, on which is an indorsement to the effect that the same was received on June 4, 1888, and executed by arresting Morrill on the same day, signed, 'S. B. PARRISH, Chief of Police of the city of Portland, by S. S. YOUNG, Police Officer;' that said police officer, instead of taking the petitioner before said judge for examination and discharge on bail, or commitment, as required by law and by said warrant commanded, lodged him in the county jail with the warrant, without examination or commitment, where he remained until taken out on the writ of habeas corpus.

From the improper conduct of the officer intrusted with the execution of this warrant, taken in connection with the exaggeration and falsehood contained in the information on which it was issued, it is quite evident that the real purpose of the proceeding was to lock up this special deputy, and thus prevent him from performing his duty in guarding the polls against fraudulent votes and practices.

The only question of fact about which there is any substantial conflict of testimony is the part which Walter F. Matthews took in getting Cetel's illegal vote into the ballot-box. On the witness stand he admits that he was engaged on the day of the election at said polling place 3 as a 'worker' for one of the political parties, but denies that he took any part in getting Cetel to vote.

It appears that Cetel went first to Polling place 3, and offered to vote, and, on being questioned by the judges, he was found to be an unnaturalized foreigner, who had not even declared his intention to become a citizen, and his vote was rejected. Morrill, who was standing within plain view of the polling place, and saw Cetel, thought he voted there. From this polling place Cetel went directly to the corner of Fourth and Mill streets, near by where it is admitted Fred D. Matthews, the brother of Walter F. Matthews, and J. L. Carrol were standing. Fred Matthews and Carrol were also engaged at that polling place as 'workers' for the same party as Walter F. Matthews.

Fred D. Matthews admitted on the witness stand that he, knowing Cetel had just been rejected by the judges at polling place No. 3, asked Carrol to 'go with him to another polling place, and see if he couldn't get him to vote,'-- that is, get his vote in the ballot-box. Carrol made some question as to how he was to get Cetel to a polling place, when Matthews told him to call an express wagon in the service of their party, which stood near by, which he did, when Matthews and Carrol got Cetel in the wagon and Carrol drive off with him, to find a voting place. This is the substance of Fred D. Matthews' story, and Carrol's is to the same effect, except that he says Fred D. Matthews came to him on the occasion, and said: 'Here is a man, (Cetel;) take him to polling place 4, and see if you can vote him,' which he did, and voted him.

Both of these witnesses seek to make the impression that Walter F. Matthews, although at that poll, had nothing to do with the transaction. The statements in this respect are generally vague, and sometimes evasive. The most direct are these: Fred D. says, 'Did not see my brother when man (Cetel) put in wagon;' and yet the latter may have participated in the consultation and shared in the conclusion that Carrol should take Cetel to polling place 4 and vote him, and then turned away to look after some other Cetel. And it may be true, so far as Carrol saw, that Walter F. had nothing to do with Cetel personally, and yet he may have consulted and advised with his brother concerning his being sent to polling place 4 with Carrol, for, according to his own statement, his attention was not attracted to this matter until Fred D. came to him and said, 'Here is a man, take him to polling place 4, and see if you can vote him.'

When Cetel left the window of polling place 3 and went to the Matthews', Morrill testifies that R. G. Church called his attention to the party, and warned him of them. Church testifies that about that time of day he saw suspicious characters about the place indicated-- the corner of Fourth and Mill streets-- in company with 'the Matthews boys,' and that he called Morrill's attention to them, and said, 'the Matthews boys are using influence to get suspicious characters to vote. ' Morrill swears that he then gave the party his attention, and saw both the Matthews and Carrol talking to Cetel in an urgent manner when Carrol and Walter F. Matthews got into the wagon with Cetel and started off. Thereupon he got in a hack and told the driver to follow the wagon, which he did, to polling place 4; and by the time he got out of the hack and up to the place Cetel had voted. On being assured of this fact by the judges, he arrested him, and took him back to polling place 3, when the judges and supervisors identified him as the alien who had just before offered to vote there and was refused. The weight of the testimony of the two Matthews and Carrol is affected by their part in and relation to this transaction; though it must be admitted that Fred F. Matthews appears to have spoken very candidly concerning his own part in it. He admits that he sent Carrol with Cetel to polling place 4, to get his vote in if he could, when he...