In re Laing

• Decision Date: 12 December 1903
• Citation: 127 F. 213
• Court: U.S. District Court — Southern District of West Virginia
• Parties: In re LAING et al.

127 F. 213

In re LAING et al.

United States Circuit Court, S.D. West Virginia.

December 12, 1903

G. W Atkinson, U.S. Dist. Atty., William R. Thompson, J. W. St Clair, and William McGinnis, for petitioners.

Romeo H. Freer, Atty. Gen., Samuel C. Burdett, and T. J. McGinnis for the State of West Virginia.

JACKSON District Judge.

This case is now before the court upon the petitions of John Laing and Stewart Hurt, alleging that they were illegally and unlawfully restrained of their liberty by confinement in the county jail of Raleigh county upon an indictment for murder.

Upon this petition being presented to the judge of the Circuit Court of the United States for the Southern District of West Virginia, a writ of habeas corpus was awarded, requiring the petitioners to be brought before the court. It is proper, in considering this case, to go some little into the details of the circumstances that surrounded the parties, who were charged with the murder of one John Harless, that we may have a clear conception of all the facts and circumstances surrounding the transaction at the time that it is alleged that Harless was killed by Laing and Hurt. The evidence discloses that in the winter and spring of 1903 an extensive 'strike' prevailed throughout all the coal operations on New river, of which the operations on Piney creek were a part; that Laing was a coal operator on Piney creek; that Hurt was in his employ. It also appears that an injunction had been sued out from the circuit court of the United States for the Southern District of West Virginia by the Chesapeake & Ohio Coal Agency Company against a large number of persons engaged in the strike, and that an order was granted by the court restraining and inhibiting the parties engaged in the strike from in any wise interfering with the property of the operators, and also restraining them from interfering with the miners employed and engaged in operating the mines. It seems that no attention was paid to these injunctions by the parties who were restrained and inhibited from interfering with the operations of the coal miners, and, regardless of their duties as good citizens, and in open and flagrant violation of the law, they disregarded the injunction, and continued, by their open and flagrant actions, to disregard the law, and set at defiance the orders of the court. Thereupon an application was made to the court for rules and attachments against some 60 persons, who had been restrained by injunctions, for a violation of them. The court granted the application, and process of arrest was issued against some 30 or more persons, which were placed in the hands of D W. Cunningham, a deputy United States marshal, commanding him to arrest the parties. On the 21st day of February, Cunningham, with some four or five men he had summoned as a posse to aid him, went to Atkinsville to execute the writs in his hands, where he was met by about 200 men, most of them being armed with deadly weapons. One shot was fired close to Cunningham, and immediately in his rear, by Burton Harper, who was one of the parties resisting the officers. About this time Cunningham was surrounded by about 25 armed men, who notified him to leave, that they would give him five minutes to get away, remarking 'that the time was about up. ' Cunningham then returned to Charleston, and reported what had occurred to Marshal Thompson, his chief. On the 25th day of February following, Cunningham went to Stanaford City to execute the same process he had attempted to execute at Atkinsville, and summoned about 80 men as a posse to aid him in the execution of them. Cunningham had been informed before he went to Stanaford City that there were about 200 armed men who would attempt to resist the execution of the writs in his hands. When he arrived at Stanaford City he found about that number there scattered around the town for the purpose of resisting him in the execution of the writs in his hands. Cunningham arrived about midnight of the 24th at Lanark, opposite Stanaford City, the two places being separated by a small stream. On the morning of the 25th, Cunningham attempted to execute the writs in his hands, when a fight took place between him and the posse and the armed men who resisted him in the execution of the writs. In this conflict between the officers and the mob, 5 of the mob were killed, and some 20 of them wounded. There were 3 of the posse wounded, and about 20 of them had holes shot through their clothes. Cunningham succeeded upon this occasion in arresting about 60 of the persons who were resisting him. After this fight Cunningham returned to Charleston and reported what had occurred to the marshal and to the District Attorney, who afterwards advised with Judge Kellar, the judge of this district. The judge, upon learning what had occurred at Stanaford, called a special term of his court, and had a grand jury summoned to investigate the Stanaford fight and riot. As a result of the investigation, there were over 100 men indicted for resisting the officers at Atkinsville and Stanaford City, at which time John Harless was indicted in two separate cases. The court, upon the 19th day of March following, ordered capiases upon these indictments for the arrest of John Harless and others, returnable to the June term of the court. On the 21st day of April, 1903, Marshals Cunningham and Summers, armed with the process of the court, went to Stanaford City for the purpose of arresting Harless. The evidence discloses that the marshals knew, when they went to make the arrest of Harless, that they had a desperate man to deal with, who had stated that he did not intend to be taken alive, and never intended to be arrested. He was seen by the officers both at Atkinsville and Stanaford City, and aided the mob at both places in resisting the officers in the execution of the process in their hands. As a necessary precaution, they summoned Laing and Hurt to aid them in making this arrest. The marshals seemed to think that when Harless saw that he was overpowered by four men he would likely surrender, and an additional reason for summoning aid to assist them was to try to prevent, if possible, the effusion of blood. That the officers in the execution of this process had a well-grounded apprehension of trouble is borne out by events that occurred in attempting to make the arrest. Cunningham, who was the chief officer in charge, took a position in front of the house in which Harless was supposed to be, anticipating that, if he undertook to escape when he went into the house, Harless would leave the house in the opposite direction from where he stood. He placed the petitioners some little distance in the rear of the house, on a little ravine which skirted a narrow bottom, through which Harless, if he attempted to make his escape, would likely run, and he placed Summers, the other deputy marshal, about 200 yards distant from the petitioners, a little to the left of them as they went up the creek. The development of the facts sustained Cunningham in his foresight and judgment as to what would occur when he entered the house to arrest Harless. The evidence discloses the fact that a female occupant of the house discovered Cunningham approaching the house, her attention being called to the fact by the barking of a dog at the approach of Cunningham. As soon as Harless was informed that Cunningham was approaching the house, he made his escape from the opposite side of the house, armed with a pistol, and ran toward the position where the petitioners were stationed to intercept him in the event that he undertook to make his escape in that direction. After Harless left the house he ran toward Laing and Hurt, and does not seem to have observed them until he came to within a short distance of them, when he was called upon by them to 'halt.' He disregarded the call of the officers and continued to run, suddenly changing his direction toward a large pine tree which was close by, and which the officers thought he was making an effort to reach in order to protect himself and to open fire upon them from behind the tree. Before the officers fired they saw in his hand a pistol, which was raised in a threatening manner, and which the officers believed he was about to use and fire upon them. At...