Harkrader v. Wadley

In the circuit court of the United States for the Western district of Virginia, one H. G. Wadley filed a petition, signed and sworn to August 10, 1896, praying for the allowance of a writ of habeas corpus. The petition was as follows:

'To the Honorable Circuit Court of the United States in and for the Western District of Virginia, at Abingdon, Va., Fourth Circuit:

'Your petitioner, H. G. Wadley, respectfully represents and shows to this honorable court that he is a citizen of the United States of America and a citizen of the state of North Carolina, and a resident of the city of Wilmington, in that state; that he is unjustly and unlawfully detained and imprisoned in the county jail of Wythe county, Va., at Wytheville, Va., in the custody of I. R. Harkrader, sheriff of said county, and as such the warden and keeper of said jail, by virtue of a warrant or order of commitment made by the county court of Wythe county, Va., at Wytheville, Va., on Monday, the 10th day of August, 1896, a copy of which order or warrant of commitment is hereto annexed, marked 'Exhibit A.'

'Your petitioner would now show that on a petition filed by him before the Honorable Charles H. Simonton, United States circuit court judge for said Fourth circuit, embracing said Western district of Virginia, on the 5th of August, 1896, the said honorable judge, Simonton, entered an order on said petition, allowing it to be filed in the equity cause of H. G. Wadley v. Blount & Boynton et al., pending in said court, and on said petition, duly verified and sustained by affidavits, the said honorable judge, Simonton, on said 5th day of August, 1896, in accordance to the prayer of said petition, granted an injunction against Robert Sayers, the commonwealth's attorney of Wythe county, Va., J. A. Walker and C. B. Thomas, special prosecutors, and the creditors embraced in said petition, together with their counsel, from all further proceedings in said county court of Wythe upon an indictment obtained against the said h. g. Wadley in said county court on the 16th day of May, 1894, and especially from exacting or requiring any bail or any commitment to imprisonment of said H. G. Wadley on said indictment in said county court.

'A certified copy of the said petition, which was presented to Judge Simonton on the 5th of August, 1896, is herewith filed, marked 'Exhibit B,' and a certified copy of the said order of Judge Simonton of the 5th of August, 1896, on said petition, is likewise herewith filed, marked 'Exhibit C.'

'Your petitioner, H. G. Wadley, would further show that heretofore, to wit, on the 31st of January, 1895, on an injunction theretofore awarded by him to your petitioner in his case of H. G. Wadley v. Blount & Boynton et al., in this court, by the Honorable Nathan Goff, he, by a decree of that date, fully sustained the contention of your petitioner by refusing to dissolve said injunction and continuing it in full force, and by said decree enjoined and prohibited all further prosecution of said indictment in the county court of Wythe county, Va., as shown by copy of the said decree and the opinion of the Honorable Nathan Goff, herewith filed, marked 'Exhibit D.'

'Your petitioner had hoped that after this final decree in the United States circuit court by the Honorable Nathan Goff on said injunction, prohibiting all further prosecution of said indictment, that the order of that honorable court would have been obeyed; but that was a vain conjecture, as the said Robert Sayers, commonwealth's attorney of Wythe county, Va., and said special prosecutors, J. A. Walker and C. B. Thomas, persisted and continued, from term to term or from time to time, in calling up said indictment in said county court, and asking for a continuance of the said indictment and for the commitment of the said H. G. Wadley to the county jail of Wythe county, and he was bailed with sureties for his appearance before the said county court to appear on Monday, the 10th of August, 1896, being the first day of the August term of the said county court. Your petitioner would now show that notwithstanding the fact that the honorable judge, Simonton, as aforesaid, did on the 5th of August, 1896, enter said order eapecially forbidding any further order in said case in said court except a mere order of continuance, and although copies of the said order were duly executed on said commonwealth attorney, Robert Sayers, and on said apecial prosecutors, J. A. Walker and C. B. Thomas, and all of the creditors named in said petition, and upon their counsel of record, by the marshal for the Western district of Virginia; which order was duly executed on Saturday, the 8th of August, 1896.

'Your petitioner, H. G. Wadley, would now show that in flagrant and contemptuous violation of both of the orders named, that of the Honorable Nathan Goff, of the 31st of January, 1895, prohibiting all further prosecution of said indictment, and in violation likewise of the said order of the Honorable Charles H. Simonton, of the 5th of August, 1896, upon the calling of the said indictment this day in said county court of Wythe county, Va., the said commonwealth's attorney and one of the special prosecutors asked for a continuance, and stated that they had nothing to do with the question of bail or with the question of the commitment of petitioner, but that that was the duty of the court, and thus indirectly accomplished what the order of Judge Simonton in express words prohibited; for the said commonwealth's attorney and special prosecutors, instead of asking a compliance by the said county court with the order of Judge Simonton, indirectly asked the court to commit him by saying it was the duty of the court to do so; and thereupon W. E. Fulton, the judge of the county court of Wythe county, Va., in violation of said orders of the United States court, did order the said petitioner, H. G. Wadley, to be committed to the sheriff of Wythe county, to keep and hold him over to answer said indictment, which is now enjoined by the said United States court, and your petitioner is now in the custody of the sheriff of Wythe county, at Wytheville, who is ex officio the warden and jailer of said county, and your petitioner is thus deprived of his personal liberty by the said court on its own motion committing petitioner to the custody of the jailer of Wythe county, Va., procured as aforesaid.

'Petitioner avers that the said indictment upon which petitioner was committed was illegally and improperly obtained, in violation of petitioner's rights as a citizen of the United States, by the counsel for the said creditors having themselves summoned before the grand jury of the county court of Wythe county, Va., on the 16th of May, 1894, and carrying before the grand jury and reading to them a copy of the deposition of your petitioner, which had been taken of petitioner in an equity suit of Blount & Boynton et al. v. H. G. Wadley et al., and thus indirectly by said record or deposition from the United States court, taken in a cause in that court, indirectly required petitioner to testify against himself in a criminal case, and upon the mere copy of said deposition of petitioner, illegally taken from the files of the said cause in the United States court and read to said grand jury of Wythe county, petitioner was indicted. A copy of said indictment is fully set forth, with said exhibit, along with the petition filed on the 5th of August, 1896, and is here referred to as a part of this petition.

'Petitioner avers that his term of imprisonment, now complained of, began on the 10th day of August, 1896, at 12 o'clock m., and that such imprisonment still continues, and that he is now in the custody of the said sheriff, as such jailer, at Wytheville, Va.

'Your petitioner will now show that his detention and imprisonment as aforesaid is illegal in this, to wit:

'First. That this court, by two decrees, that of Judge Goff of 31st of January, 1895, as also by the second order of Judge Simonton of 5th of August, 1896, declares and adjudicates the prior jurisdiction of the said United States court, both of the person of your petitioner, and also of the subject-matter of the controversy and of the issues involved in said indictment, and that said prior jurisdiction of the said United States court renders such detention and imprisonment of prisoner by said county court illegal.

'Second. That, as stated by the Honorable Nathan Goff in his petition filed with his order of the 31st of January, 1895, in the injunction case, the indictment against petitioner in said county court of Wythe county, Va., was obtained against him illegally and in violation of his constitutional rights as a citizen of the United States, by the misuse and abuse of the records of the United States court, in the withdrawal therefrom of a copy of the deposition of petitioner taken in said court in said equity cause, and read and used before the said grand jury of said county court of Wythe as the foundation of said indictment.

'Wherefore, to be relieved from said unlawful detention and imprisonment, your petitioner, H. G. Wadley, prays that a writ of habeas corpus, to be directed to I. R. Harkrader, sheriff of Wythe county, Va., at Wytheville, Va., and keeper of the said jail of the said county, and in whose costody petitioner now is, may issue in his behalf, so that your petitioner, H. G. Wadley, may be forthwith brought before this court, to do, submit to, and receive what the law may direct, and upon the hearing thereof that your honor will discharge petitioner from all further custody or imprisonment, and that he go hence without bail.'

There was attached to said petition the following exhibit:

'This day came the commonwealth, by her attorney, and James A. Walker and C. B. Thomas, assistant prosecutors, as well as the accused, in his own proper person, in discharge of his recognizance; whereupon the attorney for the commonwealth moved the court to continue this cause on the ground that there are documents, books, and papers in the possession of I. C. Fowler, clerk of the circuit court of the United States for the Western district of Virginia, at Abingdon, and that there are other documents, papers, and books in the possession of H. B. Maupin, receiver of the said circuit court of the United States, in the chancery cause of Paul Hutchinson, administrator, against the Wytheville Insurance and Banking Company, pending therein, which said papers, books, and documents are material evidence of the commonwealth in the prosecution of the said indictment against the said H. G. Wadley, and that the commonwealth cannot safely go to trial without the said papers, books, and documents; that the said J. L. Gleaves, then attorney for the commonwealth of Virginia for Wythe county aforesaid, at a former term of the circuit court of the United States, applied to the said circuit court for an order directing the said clerk and the receiver to obey any subpoena duces tecum issued from the clerk's office of this court, requiring said clerk and said receiver to produce said papers, books, and documents before this court on the trial of this prosecution, and that since said order was entered in the said circuit court of the United States the said J. L. Gleaves, attorney for the commonwealth aforesaid, procured subpoena duces tecum to be regularly issued from the clerk's office of this court for said I. C. Fowler, clerk as aforesaid, residing at Abingdon, Virginia, and H. B. Maupin, receiver as aforesaid, residing in Wythe county, Virginia, requiring them to produce said papers, books, and documents in their possession as aforesaid; which said subpoenas duces tecum were duly executed on the said I. C. Fowler, clerk, and the said H. B. Maupin, receiver, but that they refused and declined to obey the same, or to produce said papers, books, and documents, because since said order was entered by the United States court, and, since said subpoenas duces tecum were issued and served, the accused, H. G. Wadley, had prepared and sworn to a bill asking for an injunction restraining the said I. C. Fowler, clerk, and the said H. B. Maupin, receiver, from obeying any such subpoena duces tecum, which bill was presented by counsel for the said H. G. Wadley to the Hon. Nathan Goff, one of the circuit judges of the United States for the Fourth circuit, and on the ex parte motion of the said Wadley the said judge awarded an injunction restraining the said J. L. Gleaves, attorney for the commonwealth of Wythe county, Virginia, either by himself or the agreement of others, I. C. Fowler, clerk of the said United States circuit court, H. B. Maupin, receiver as aforesaid, by themselves, or by their agents or defendants, from all further proceedings or participation by them, or either of them, in a prosecution now pending in the county court of Wythe county, in the name of the Commonwealth v. H. G. Wadley, for the embezzlement of the assets of the Wytheville Insurance and Banking Company, restraining and enjoining them, and all other defendants named in said bill, including their attorneys, clerks, agents, either directly or indirectly, through their own agency or the agency of others, from in any manner using against said H. G. Wadley in any other court, state or federal, in any other case, civil or criminal, the deposition of the said Wadley taken in another case of Paul Hutchinson, Adm'r, v. The Wytheville Insurance and Banking Company, pending in the circuit court of the United States for the Western district of Virginia, or any copy thereof or extract therefrom.

'And the prayer of said bill is in the following words:

"Forasmuch as your orator can have no adequate relief except in this court, and to the end, therefore, that the defendants may, if they can, show why your orator should not have the relief prayed for, and that they may answer to the matters hereinbefore stated and charged, the prayer of your orator is:

"That this bill of injunction and for relief be treated as incidental to said suit now pending in your honor's said court at Abingdon; that your honor may grant a writ of injunction, issuing out of and under the seal of this honorable court, restraining and enjoining, under the penalty for a violation hereof, all of the defendants to this bill, including their attorneys, clerks, and agents, either directly or indirectly, through their own agency or through the agency of others, from in any manner using against orator in any other court, state or federal, in any other case, civil or criminal, the said deposition of your orator aforesaid taken in said suit in equity, or any copy thereof, or the report of Master Commissioner Gray, taken and filed therein, or any copy thereof, or any of the books, papers, records, or correspondence, or any copies thereof or extracts therefrom, of the Wytheville Insurance and Banking Company, in the possession or that came under the control of said Gray, commissioner, or of H. J. Heuser, late receiver, or of H. B. Maupin, present receiver, or of I. C. Fowler, clerk, in said equity suit that was brought in this court by said creditors; that your honor will likewise enjoin each and all of said defendants, creditors, who are now parties by the decrees of this court in said suit in equity now pending in this court, whether they are parties to the original bill or interveners by petition, or are plaintiffs in the amended, supplemental, and cross bill, or whose claims have been allowed by, or presented to, the master commissioner, Gray, for allowance, together with all their attorneys, clerks, or agents, either through their own agency or acts or through the agency or acts of others, and also the said J. L. Gleaves, the commonwealth's attorney of Wythe county, Virginia, either by himself or by the agency of others, and said commissioner, Gray, Receivers Heuser and Maupin, and said clerk, Fowler, by themselves or their agents or deputies, from all further prosecution of or participation by them, or by either of them, in the criminal procedure now pending in the county court of Wythe county, Virginia, in the name of the Commonwealth of Virginia v. H. G. Wadley, upon an indictment for embezzlement of the assets of the Wytheville Insurance and Banking Company, the said creditors having already submitted themselves and their claims affected by or involved in said criminal procedure, by their bill in equity, to the prior jurisdiction of this court; that your honor, upon a final hearing of this cause, will punish the parties involved for their unjust and unlawful misuse of the records of this court in said equity suit, for the promotion and prosecution by said creditors of said criminal procedure against your orator, now pending in the said county court of Wythe county, Virginia, put on foot by said creditors and their attorneys.

"[Copy.] Attest: I. C. Fowler, Clerk.'

'The restraining order is in the following words:

"This day came H. G. Wadley, one of the defendants in the above proceedings in equity now pending in the above-named court, and he presented his bill for an injunction in his name against said Blount and Boynton et al., and this said bill being duly sworn to by H. G. Wadley, and fully supported by the affidavits of J. H. Gibboney, H. J. Heuser, and J. B. Barrett, Jr., the cause came on this day to be heard upon said bill for injunction, and upon all the exhibits filed thereto, and upon a transcript of the record of said original bill, and said amended, supplemental, and cross bill, above named, and, upon reading said bill and affidavits and the said exhibits and transcripts, the court is of opinion that the equity jurisdiction of the United States court above named first attached to both the persons and the subject-matter involved in said suits in equity, and that it is improper that the records of the pleadings, proofs, books, and papers filed in and parts of said equity suits now in litigation and pending unadjudicated in this court between said parties, or copies thereof, should be withdrawn therefrom and used by any one in any criminal or other proceedings, in any other court, against the said party to any of said suits, in regard to any matters in issue in said suits in equity, until the same have been fully adjudicated by this court; and it appearing to this court from said bill for injunction that such has been done and is now threatened by parties to said suits in equity, for the use in a criminal proceeding just begun by them in the county court of Wythe county, Virginia, against said H. G. Wadley, for matters involved in and growing out of said suits in equity, which were first instituted, and are still pending in litigation and undetermined, in this court, it is ordered that an injunction be awarded to said H. G. Wadley according to the prayer of his bill; and, it appearing to the court that the defendants in said bill are quite numerous, it is further ordered that service of this order on their counsel shall be equivalent to personal service on them.

"But before this injunction shall take effect the said H. G. Wadley with execute a bond before the clerk of the court in the penalty of $10,000, conditioned according to law, with N. L. Wadley as his surety, who is approved as such surety, proof of her solvency being now made.

"June 8, 1894.

"To I. C. Fowler, Clerk United States Circuit Court, Abingdon, Va.

"N. Goff, Circuit Judge.'