In re Fair

• Decision Date: 23 March 1900
• Citation: 100 F. 149
• Parties: In re FAIR et al.
• Court: U.S. District Court — District of Nebraska

100 F. 149

In re FAIR et al.

United States Circuit Court, D. Nebraska.

March 23, 1900

Syllabus by the Court

The finding and judgment of 'Not guilty' by a military court-martial is not a bar to the prosecution for the same act by the civil authorities.

An order given by a military officer to his private should be obeyed by the private, and will be his full protection in a criminal prosecution, unless the illegality of such order is so clearly shown on its face that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal.

The government of the United States and of a state, though exercised within the same territory, occupy different planes and the criminal laws of the one have no application to acts performed under the authority of the other in respect to matters solely within its control.

Laws rules, and regulations for the efficiency and discipline of the army of the United States are matters vested by the constitution solely in the general government.

An officer or agent of the United States who does an act which is within the scope of his authority as such officer or agent cannot be held to answer therefor under the criminal laws of another and different government.

The care, judgment, and discretion which should be exercised by an officer of the United States in the performance of his duty as such officer are not to be measured by the criminal laws of a state.

When an officer, in the performance of his duty under the laws of the United States, exceeds his authority, he may be sued in the state courts by any person injured by reason thereof, but when the act was done in good faith, and without malice, he is not liable to a criminal prosecution in such courts.

While a United States court will not, in a habeas corpus proceeding by an officer of the United States, examine the evidence for the purpose of determining whether he should be found guilty or innocent, yet the court may and should examine the evidence for the purpose of determining whether the act alleged to be criminal was done while in the performance of his duty as such officer.

When an officer of the United States is held in custody by the process of a state court for an act done within the authority conferred upon him by the laws of the United States, the United States government may protect itself by procuring the release of such officer through its judicial department.

W. S Summers, U.S. Atty., and S. R. Rush, Asst. U.S. Atty., for petitioners.

C. J Smyth, Atty. Gen., and James Hassett, Co. Atty., for respondent.

MUNGER District Judge.

Samuel Morgan, under charge of having deserted from Troop A of the 8th cavalry, United States army, on the 7th day of September, 1898, was held as a prisoner at Ft. Crook, Neb., on the 17th day of November, 1899. John S. Pryor, a private in the 10th infantry, was, on said date, a guard over said Morgan. Morgan on said day, with another prisoner named Deacon, made an assault on the guard, Pryor, knocking him down, kicking him when down, dismantled the gun of the guard, and attempted escape by flight. William M. Simpson, a sergeant of Company M, 10th infantry, who at the time was sergeant of the guard, called upon John S. Fair, a corporal, and Henry H. Jockens, a private, both members of Company M, 10th infantry, and who were on guard duty on said day, to pursue and arrest Morgan and Deacon. The order, as given, was in substance as follows: 'Pursue the prisoners. If you sight them, and are positive it is the right party, halt them; and, if they do not halt, halt them a second time; and, if they do not halt, then fire upon them, and fire to hit them. ' Fair and Jockens pursued the fleeing prisoners through fields and timber until reaching the village of La Platte some three miles from Ft. Crook, having in the meantime lost sight of them. On arriving at La Platte, Corp. Fair made inquiry to ascertain if there was a marshal, constable, or other peace officer there, and found there was none. He then called up, by telephone, Lieut. Welch, at Ft. Crook, who was the officer of the day, reported where he was, and his belief that the prisoners were in that vicinity. Lieut. Welch directed him to notify the civil authorities, and was informed by Fair that he had ascertained there was none there. A few minutes later, while Fair and Jockens were standing in the highway making inquiry for the prisoners of three persons who had just driven up, the prisoner Morgan passed along on the opposite side of the highway. It being the dusk of evening, and Morgan dressed in civilian clothing, they were not positive of his identity, but called upon him to halt, to which no attention was paid, but Morgan continued at a rapid walk. He was commanded the second time to halt, whereupon, he turned his face towards them, and asked, 'What in hell do you want? ' Corp. Fair responded, 'We want you to halt.' Morgan then started on a run, assuming a stooping posture. He was again commanded to halt, but continued to run. Fair and Jockens had, in the meantime, advanced towards him 30 or 35 steps. Morgan continuing to run, Corp. Fair gave the command to fire. He and Jockens both fired at Morgan, who was hit, and died some five minutes thereafter. For the killing of Morgan, Corp. Fair and Private Jockens were both tried before a general court-martial, convened at Ft. Crook, on the charge of 'manslaughter, to the prejudice of good order and military discipline,' on which trial they were found not guilty. Thereafter a complaint in due from was made before the county judge of Sarpy county, Neb., charging both Fair and Jockens with the crime of murder in the killing of Morgan. They were duly arrested, an examination had by the county judge, and each held for trial in the district court of Sarpy county, bail being fixed by the county court in the sum of $1,000, which failing to give, they were committed to the custody of the sheriff of the county. Fair and Jockens have petitioned this court for their release, claiming their imprisonment is without authority of law.

The principal question to be determined is, has the state court, within and for the county of Sarpy, Neb., jurisdiction to try petitioners for such killing of Morgan as a violation of the laws of the state. If the killing of Morgan was an act violative of the laws of the state, then the state court has jurisdiction, and the petitioners must be remanded to the custody of the state, then the state court is without jurisdiction, and the petitioners should be discharged.

Two principles of law discussed on the hearing and applicable to the case are so well and firmly established that no extended citation of authorities is necessary in support thereof. They are-- First, that the trial and acquittal of petitioners by the court-martial is not a bar to an inquiry and prosectuion by the proper civil authorities (Coleman v. Tennessee, 97 U.S. 506, 24 L.Ed. 1118; U.S. v. Clark (C.C.) 31 F. 710); second, that an act done by an officer or agent of the United States in and about a matter solely within federal control, and in pursuance of an authority given by the laws of the United States, is not an offense against the laws of the state (Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648; In re Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55). Neither can it be denied that, when an officer or agent of the United States is held in custody by the process of a state court for an act done within the authority conferred upon him by the laws of the United States, the United States government may protect itself by procuring the release of such officer through its judicial department. As was said by Justice Strong in Tennessee v. Davis:

'The general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers. It can act only through its officers and agents, and they must act within the states. If when thus acting, and within the scope of their authority, those officers can be arrested, brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection,-- if their protection must be left to the action of the state court,-- the operations of the general government may at any time be arrested at the will of one of its members. * * * We do not think such an element of weakness is to be found in the constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the states and upon the people of the states. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No state government can exclude it from the exercise of any authority conferred upon it by the constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it.'

Writing for the court in Osborn v. Bank, 9 Wheat. 865, 6 L.Ed. 234, Chief Justice Marshall said:

'It is not unusual for a legislative act to involve consequences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order; his security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point.

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