MARYLAND V. SOPER

• Decision Date: 01 February 1926
• Citation: 270 U. S. 36
• Court: U.S. Supreme Court

Maryland v. Soper (No. 2)

No. 24 Original

Argued December 7 1925

Decided February 1, 1926

270 U.S. 36

PETITION FOR A WRIT OF MANDAMUS

Syllabus

An indictment in a state court charging federal prohibition agents with a conspiracy to obstruct justice by giving false testimony at a coroner's inquest concerning a homicide for which they were then under arrest and subsequently were indicted for murder is not removable to the federal court under § 33 of the Judicial Code, even though the murder charge would be removable as one commenced "on account" of their official acts. P. 42.

Mandamus made absolute.

Petition by the State of Maryland for a writ of mandamus directing the United States District Judge of the District of Maryland to remand to the proper state court an indictment for conspiracy to obstruct justice by false testimony, which had been removed to the district court under the provisions of § 33 of the Judicial Code. See also the case next preceding.

Page 270 U. S. 39

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This is a petition for mandamus by the State of Maryland to require the district court of the United States for that state to remand to the State Circuit Court for Harford county an indictment by the grand jury of that county for obstructing justice of the state by false testimony. The indictment had been removed from the circuit court to the federal court in asserted compliance with § 33 of the Judicial Code. The amended petition of removal, upon the sufficiency of which the application of § 33 turns, discloses the same state of facts as that shown in the mandamus case between the same parties just decided. The indictment charges that the same defendants as were there charged with murder conspired in a hearing before a justice of the peace of Harford County, acting as the coroner with a jury and engaged in the official duty of inquiring into the manner of the death of Lawrence Wenger on November 20, 1924, to deceive the coroner and jury by withholding the facts concerning Wenger's death, and falsely asserting ignorance thereof, in order to induce them to return a false and erroneous verdict, and thus to obstruct justice in violation of a criminal statute of Maryland. This testimony was given the day after Wenger's death while the defendants were under arrest on the charge of murder, and the indictment in this case was returned at the same time as the indictment for murder.

Page 270 U. S. 40

The amended petition of defendants for removal avers that,

"on the afternoon of November 20th, your petitioners were called before the coroner's inquest heretofore described in the indictment, and freely and without reservation, in accordance with their duty as investigating and reporting officers of the federal government and acting under the direction of the Maryland Federal Prohibition Director, related the facts before mentioned, and thereupon they were again placed in the Harford County jail and held for the action of the Harford County Grand Jury."

The amended petition concludes with the statement that

"the said indictment is now pending in the Circuit Court for Harford County, and is a criminal prosecution on account of acts alleged to have been done by your petitioners at a time when they were engaged in the performance of their duties as federal prohibition officers and chauffeur for federal prohibition officers, as set forth in the aforegoing paragraphs."

The record in this case is in all respects like that in the case just decided, except that the prosecution is for obstruction of justice. The orders of the federal district court, the other proceedings, the stipulation as to evidence, the petition for mandamus, and the return of Judge Soper to the rule issued on the petition of the state for mandamus are all similar.

Counsel for the State of Maryland argue that the accused officers were in no sense acting in their official capacity when engaged in the alleged conspiracy to deceive the coroner; that their duty had been discharged when they destroyed the still; that their subsequent reports of what had happened to their federal superiors are not the subject of this prosecution; that the indictments for conspiracy and perjury were based not on acts which the defendants had done in pursuance of federal law and in discharge of their duty to the federal government, but on testimony given by them under their obligations to

Page 270 U. S. 41

the state as individuals and for which they were detained in jail. To this it is answered, on behalf of the United States, as follows:

"But how did the officers come to be in jail? If they had not been engaged in the performance of their duties as federal officers, they would never have been there. When they found Wenger's body, they had just come from performing their duty, and were on their way back to report officially to their superior. At that time they were still acting in their official capacity. United States v. Gleason, 1 Woolw. 128, Fed.Cas. No. 15216. In immediately seeking for a physician, and in reporting Wenger's death at once to the state's attorney, they were doing the only reasonable act which could be expected of them, both as public officers and as private citizens. But, as their petition alleges, the state's attorney, on being informed by them that your petitioners . . . were prohibition officers, ordered them to be at once placed under arrest."

"If they had not discovered Wenger and reported his murder, there would have been no need for them to testify before the coroner's jury, and there would have been no occasion for any charge of conspiracy. The two charges, it is...