Virginia v. Paul

Statement by Mr. Justice GRAY:

This was a petition by the commonwealth of Virginia to this court for a writ of mandamus to the Honorable John Paul, district judge of the United States for the western district of Virginia, and holding the circuit court of the United States for that district to command him to remand to the county court of Smyth county, in Virginia, an indictment against Joseph H. Carrico for the murder of James M. Nelson, found by the grand jury of the county, and by them returned into the county court, and of which the circuit court of the United States had assumed jurisdiction; and also to command him to restore the body of Carrico to W. D. Wilmore, the jailer of the county, from whose custody he had been taken upon a writ of habeas corpus issued by said judge.

Annexed to the petition was a copy of the record of the district court of the United States in the proceedings for habeas corpus, as well as a copy of the record of the circuit court of the United States in the proceedings concerning the indictment.

The record of the district court set forth the following proceedings: On December 18, 1891, in vacation, Carrico presented to Judge Paul a petition addressed to him as 'judge of the United States circuit court,' alleging 'that on December 12, 1891, one Kirk, a justice of the peace of Smyth county, Va., issued his warrant in the name of the commonwealth of Virginia, addressed to Constable Scott of the said county, commanding him to arrest your petitioner, and bring his body before said justice, for willfully, premeditatedly, and of malice aforethought, killing and murdering one James M. Nelson, in the said county of Smyth, on December 11, 1891; and upon said warrant the said constable Scott did arrest your petitioner, late on Saturday evening, December 12, 1891, and delivered him to W. D. Wilmore, the jailer of Smyth county, Va.; and your petitioner is now confined in the jail of Smyth county, at Marion, awaiting a trial before said justice upon the said charge of murder.' The petition further alleged that no murder was committed, but that the killing was done by the petitioner in self-defense, in the performance of his duty as a deputy of the marshal of the district, acting by and under the authority of the internal revenue laws of the United States, and in attempting to arrest Nelson while violating those laws, by having in his possession, and selling, illicit ardent spirits. 'In view of these facts, under section 643 of the Revised Statutes of the United States,' the petition prayed that 'said cause may be removed from the jurisdiction of the said Kirk, justice of the peace of said county of Smyth, and from the county court of said county, to the circuit court of the United States for the western district of Virginia, for trial;' that a writ of habeas corpus cum causa might be awarded, and a duplicate thereof delivered to the clerk of the county court, and that by virtue thereof the marshal of the district, or one of his deputies, might take the body of the petitioner into his custody, to be dealt with in the cause according to law, and according to the order of the circuit court, or of a judge thereof in vacation; and, 'upon the removal of said prosecution, that a copy of the record and proceedings before said justice and by said constable' might be brought into the circuit court. The petition was verified by the oath of the petitioner, taken before a United States commissioner on December 12th; and annexed to it was a certificate of counsel of the same date, in the form required by said section of the statutes.

Upon that petition, and on the same day, Judge Paul made an order entitled 'In the district court of the United States for the western district of Virginia, in vacation,' and signed by him as district judge, granting a writ of habeas corpus in common form to the jailer, returnable before him on December 23d, at Abingdon.

On December 19th, that petition was filed, and the order granting the writ of habeas corpus recorded, in the clerk's office of the district court, and the writ was issued accordiangly, tested by Judge Paul, as judge of the district court, and under its seal.

On December 22d, the writ of habeas corpus, as appeared by the marshal's return thereon, was executed by delivering copies thereof to the jailer and to the clerk of the county court.

On December 23d, at a special term of the district court, held at Abingdon, the jailer brought in the body of Carrico, and returned that the causes of his detention were a warrant of commitment, a copy of which, marked 'Exhibit A,' was annexed to and made part thereof, 'and the proceedings of the county court of Smyth and commonwealth of Virginia, marked 'Exhibit B,' and made part and parcel of this return.' The only exhibit annexed to the jailer's return was marked 'Exhibit A,' and was as follows:

'Virginia, Smyth county, to wit: To William Scott, constable of said county, and to the keeper of the jail of said county:

'These are to command you, the said constable, in the name of the commonwealth of Virginia, forthwith to convey and deliver into the custody of the keeper of said jail, together with the warrant, the body of Joseph H. Carrico, charged before me, John J. Kirk, a justice of the said county, on the oath of R. W. Nelson, with a felony by him committed, in this: that the said Joseph H. Carrico, on the 11th day of December, 1891, in the said county, feloniously and of his malice did kill and murder one James M. Nelson; and you, the said keeper of the said jail, are hereby required to receive the said Joseph H. Carrico into your jail and custody, that he may be examined for the said offense by the county court of the said county, and him there safely keep until he shall be discharged by due course of law. Given under my hand and seal this, the 14th day of December, 1891.

John J. Kirk, J. P.'