In re Mary Jones
| Decision Date | 21 March 1913 |
| Citation | 71 W.Va. 567 |
| Court | West Virginia Supreme Court |
| Parties | *In re Mary Jones In re Chas. H. Boswell In re Charles Batley In re Paul J. Paulsen. |
The principles and conclusions of law announced in State ex rel Mays v.Brown, Warden and State ex rel Nance v. Brown, Warden, having been re-examined, after thorough argument and consideration, are approved and re-affirmed. (p. 572).
A state of war having been declared in any part of the state on an occasion of insurrection, the war power of the state in the form of military rule, defined by the usages of nations, prevails in the territory subject to the proclamation, excluding the civil powers as to offenses, if the executive so order, while the peace powers of government under civil law prevail elsewhere. (p. 606).
In such case, the governor may cause to be apprehended, in or out of the military zone, all persons who shall wilfully give aid, support or information to the insurgents, and detain or imprison them, pending the suppression of the insurrection.
(p. 606).
Sections 6, 7, 8 and 9 of chapter 14 of the Code authorizing such arrest and imprisonment, do not violate the provisions of the state and federal Constitutions, inhibiting deprivation of liberty without a trial by jury, and are constitutional and valid. (p. 607).
Being so, such arrest, detention and imprisonment, by virtue of said statute, are effected by due process of law within the meaning of section 10 of Article III. of the Constitution of this state and the Fourteenth Amendment to the Constitution of the United States. (p. 608). Robinson, Judge, dissenting.
Applications by Mary Jones, by Chas. H. Boswell, by Charles Batley, and by Paul J. Paulsen for writs of habeas corpus.
Petitioners Remanded.
Statement by Poffenbarger, PresidenT:
On the petitions of P. J. Paulsen, C. H. Boswell, Charles Batley and Mary Jones, alleging their confinement in a military guard house, in the town of Pratt, by the military authorities of the state, acting under the orders of the governor; a proclamation by the governor of a state of war in the territory in which the said military guard house is, a portion of Kanawha county; the organization of a military commission to sit and act in said district for the trial of such persons as may properly be brought before them; their apprehension of petitioners in said county outside of said military district, by a civil officer, on complaints filed with a justice of the peace, charging them with a conspiracy to inflict bodily injury upon sundry persons unknown to the complainant and to destroy and injure personal property not their own, and the killing of one Fred Bobbitt in pursuance of said conspiracy; and their delivery by said officer to the said military authorities by the verbal order of the governor; writs of habeas corpus were issued, directed to the governor, the adjutant general of the state and the members of the military commission, commanding them forthwith to produce the bodies of the relators.
The returns to the writs admit the arrests and detention complained of, the filing against the petitioners of charges and specifications prepared by the provost marshal, charging each of them with having conspired with numerous other persons to inflict bodily injury upon one Thomas Nesbit, and, in pursuance of such conspiracy, with having shot him with intent to maim and disfigure, disable and kill him, on or about the, 10th day of February, 1913, within the district covered by the governors proclamation of war; with having murdered one Fred Bobbitt and one W. R. Vance within said district on or about the said date; with having otherwise conspired for such purposes and in such manner, and so far executed such conspiracy, as to render them guilty of felonies under what is known as the "Red Men's Act"; with having become accessories after the fact to the alleged murder of Fred Bobbitt by the rendition of aid to the principal felons in their efforts to escape;and with having unlawfully carried concealed weapons.
The arrest of the prisoners outside of the military district by a civil officer and conveyance of them into the military district are admitted, but it is denied that they were arrested without a warrant, and also that they were carried into the military district by the direction of the governor or any of the military authorities under his control. On the contrary, it is averred that a warrant was issued on the complaint of a citizen and the arrest made under the warrant, and that they were conveyed into the military district by the order of the justice of the peace to whom the warrant was returnable. The returns also denied any fixed purpose or determination on the part of the military commission to try and convict the petitioners and say the charges preferred against them have not yet been inquired into. Averring the arrests to have been made within the military district and denying them to have been made in pacific territory, they say the prisoners were arrested in said district during a time of insurrection, riot or lawlessness in which insurrection, riot or lawlessness the petitioners were then participating.
As the basis of three successive proclamations of war in practically the same territory all within less than a year, they set forth large amounts of information collected by the governor and military forces, showing a reign of terror, characterized by pitched battles between miners and mine guards, with long range and deadly rifles and machine guns, in which numerous persons have been killed and a great many others wounded, and a vast amount of property destroyed. In connection with this, records and papers of the civil authorities are produced, indicating their utter inability to cope with the situation. Summarizing the conditions, the returns say Of the part played by the petitioners in the uprising each of the returns says: "Your respondents are informed and believe, and so aver, that the petitioner has been largely instrumental in causing and encouraging the lawlessness, riot and insurrection now prevalent in the aforesaid territory, and that the detention of the prisoner is in their judgment necessary in order to effectually suppress the lawlessness, insurrection and riot which occasion the proclamation of Martial Law."
The bodies of the petitioners having been produced, the cases were submitted on demurrers to the petitions and motions to quash the same, demurrers to the returns and motions to quash them and general replications. Affidavits of the justice with whom the complaints were filed and by whom the warrants were issued, and the prosecuting attorney of the county, filed in support of the returns, show that the former, by direction of the latter, ordered the officer by whom the arrest had been made to carry the prisoners into the military district. To show the existence of the grounds upon which the prosecuting attorney gave this direction, he states his knowledge and information as to the lawless conditions prevailing in the military district, the declaration of martial law and a state of war therein, summarizes many of the matters set forth in the returns, narrates the details of the uprising of February 7, 1913, in the course of which Vance and Bobbitt were killed, and gives it as his belief and opinion that the military commission has jurisdiction of the offense with which the parties are charged, and also that justice cannot be administered to them in the civil courts of the county, because of inability to obtain the testimony of the witnesses, since they reside in the military district where lawlessness obtains, producing a state of fear and intimidation. As to this point, the affidavit says: ''Martial law has been three times declared in portions of said county; * * owing to the terror and intimidation created by this state of affairs, practically without exception it has been impossible during all of the period aforesaid to secure the apprehension and indictment of the guilty parties in any of these crimes, even in the periods when martial law did not prevail; * * while the lawlessness and crimes have been principally, though not entirely, confined to the district now under martial law, the disturbance thereof has extended to other parts of the county to such an extent that the civil courts have been and are virtually closed for the punishment of crimes committed in the district now under martial law." An affidavit of the sheriff of the county, filed, contains the following: "Affiant has read the affidavit of T. C. Townsend, and concurs in the statement therein contained of the lawlessness and disorder and conditions generally prevailing in said county during many months past, and in the opinion of said Townsend that for the reasons stated in said affidavit it has been and is impossible to administer justice in the civil courts to persons for offenses committeed in the district now under martial law, and that the...
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