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imperfect signal of the approaching danger. The ringing of the bell all occurred on the main track. The point at which he was struck was some fifteen rods from the south end of the side track where it connected with the main track, and the engine of the freight train had just previously gone past him south on the main track and proceeded some twenty-five rods south of the south end of the side track, when it stopped to back on to the switch. The engine did not get fully on to the switch. The ringing of the bell at such a distance, on the main track, was not likely to give deceased much warning that these loose cars were about to be thrust together in the manner they were. We do not think the proof shows any such negligence on the part of the deceased as should stand in the way of a recovery.

It is also claimed there was no negligence shown on the part of appellant. The extent of the care and diligence shown on its part consisted in ringing the bell. This car, loaded with wood, as also other cars, had been placed by the company on this side track, and they were standing there for the purpose of being unloaded by the consignees. The deceased was actually engaged in unloading this car of wood, and two other persons were engaged in unloading a car of lumber. The employees of the defendant either actually knew that these persons were so engaged, or had reason to expect that persons might be so employed about the cars.

It appears by the testimony that a freight train with five railroad employees upon it had, just previously to the accident, passed south on the main track directly past where these men were at work, and continued down south some twenty-five rods below the entrance to the switch, and forty rods below where deceased was at work; that the switchman had also passed from the company's freight-house north of where the cars stood, down past where deceased was at work, to the entrance to the switch, for the purpose of having two cars set in on this side track. Neither of these employees, so far as the evidence shows, took any pains to notice who were at work unloading cars; or to caution them of approaching danger, further than the ringing of the bell.

In running against this loose car, as was done here, without giving any more information that it was about to be done than appears in evidence, the jury was warranted in saying that there was a neglect on the part of the servants of the company to exercise that reasonable care and diligence not to endanger the safety of the persons employed about these cars, which the situation required of them to exercise.

We see no reason for disturbing the verdict on the evidence.

It is further insisted that the court erred in giving instructions for appellee. We perceive no special objection to any of them except the first. This one was faulty, and might properly have been refused. But, in view of its character, and the circumstances of the case, we do not think it could have misled the jury, and we cannot say that the error in it is serious enough to call for a reversal of the judgment.

The instructions given for appellant were more favorable, perhaps, than it was entitled to have given. We do not think appellant has any substantial cause of complaint as to the way in which the law of the case, upon the whole, was laid down to the jury. The judgment must be affirmed.

Judgment affirmed.

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[JUNE, 1875.]




A person held by virtue of the sentence of a state court for a crime which was not within the jurisdiction of such court, may be released upon a writ of habeas corpus from a

United States court. A committed perjury before a United States commissioner, and was tried and sentenced

in a state court. Having been produced upon a writ of habeas corpus sued out of a United States court, it was held, that the state court had no jurisdiction to try the relator, the crime not being one against the state ; and that the United States court had power to discharge him upon habeas corpus.

THIS was a writ of habeas corpus, under the first section of the Act of Congress of February 5, 1867, in behalf of Dock Bridges, a freedman, citizen of the United States and of Georgia. The application set forth that Bridges was held in imprisonment in the state penitentiary, without law or right, and in violation of the Constitution and laws of the United States, charged with the crime of perjury against the laws of Georgia; that he was not guilty, or if guilty of any offence, it was not against the state, but against the United States, whose courts have exclusive jurisdiction; that he was convicted and sentenced by the superior court of Randolph County, in said state, for eight years at hard labor, in said penitentiary, for having committed perjury while testifying as a witness before a commissioner of the United States circuit court, for the Southern District of Georgia, in a preliminary examination, in a case of the United States against one Nicholas Kinney, arrested on a warrant issued by said commissioner, charging Kinney with being guilty of a crime against the laws of the United States — a violation of the Enforcement Act of May 31, 1870 — committed in said district, on the 7th of October, 1874.

To the petition was annexed a copy of the record of the proceedings in said superior court, containing among other matters the indictment, the petitioner's only plea, — not guilty, names of the jurors, testimony of the witnesses, the verdict, motion for a new trial, the decision overruling it, and the sentence of the court.

The bill of indictment was as follows:“ Georgia, Randolph County, &c. The grand jury, &c., in the name and behalf of the citizens of Georgia, charge and accuse Dock Bridges (and four others) of the state aforesaid, of perjury:

“For that the said Dock Bridges, &c., on the 22d day of October, A. D. 1874, and in the county aforesaid, there being then and there pending and under legal investigation before L. A. Guild, a lawful commissioner of the United States, exercising and holding jurisdiction in said county and state, a charge against Nicholas Kinney, for a violation of the enforcement act, passed by the Congress of the United States, and of force

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in said county and state, the said investigation being a proceeding under the execution of a warrant by D. C. Bancroft, Deputy United States Marshal, against said Nicholas Kinney, for the said offence of a violation of the enforcement act, and the said investigation being then and there a preliminary inquiry by L. A. Guild, United States Commissioner, as aforesaid, to ascertain whether or not there existed probable cause for said charge against said Nicholas Kinney, then and there before the said L. A. Guild, who was then and there an officer aforesaid, lawfully authorized to administer an oath, who swore the said Dock Bridges, &c., as witnesses in the case aforesaid, the said witnesses then and there taking the oath upon the Holy Evangelists of Almighty God, and then and there, in the manner aforesaid swearing, did state under their oath as aforesaid, that the said Nicholas Kinney, in a threatening manner, and with a knife in hand, in the town of Dawson, of Terrell County, and said state, did attempt to prevent said Dock Bridges, &c., from voting, unless they should vote the Democratic ticket, at an election being held at the courthouse in the town of Dawson, of Terrell County, and said state, on the 7th day of October, A. D. 1874, for a member of the legislature to represent said county of Terrell in the General Assembly of said state, which statement so sworn by said Dock Bridges, &c., was then and there material to the issue on trial in said case; whereas, in truth and in fact, the said Nicholas Kinney, on the said 7th day of October, in the year 1874, at said election being then and there held in the town of Dawson as aforesaid, did not, in a threatening manner, and with knife in hand, attempt in said town of Dawson to prevent the said Dock Bridges, &c., from voting at said election, unless they should vote the Democratic ticket; and the grand jurors aforesaid, on their oath aforesaid, do charge that the said Dock Bridges (and four others), on the said 22d day of October, A. D. 1874, and in the said county of Randolph, and in the manner aforesaid, did wilfully, knowingly, absolutely swear to the aforesaid false statement, contrary to the laws of said state, the good order, peace, and dignity thereof."

The petition prayed for the writ of habeas corpus, under the provisions of the Act of February 5, 1867.

The principal keeper of the state penitentiary, to whom the writ was directed, returned, that, in obedience to it, he produced the body of Bridges before the court; but that, as such principal keeper, he declined to surrender him, on the ground that he had been indicted and convicted of perjury in the superior court of Randolph County, Georgia, and that court had sentenced him to eight years' confinement at hard labor in the state penitentiary ; that he held him under that sentence; that no United States judicial authority had jurisdiction to inquire further into the cause of his detention ; that it was only the superior court of Randolph County aforesaid that could legally inquire into it or discharge him from custody.

So much of the return as questioned the jurisdiction of a federal court or judge to inquire into the cause of the imprisonment of Bridges, was argued by counsel for respondent, relying principally upon the case of Ableman v. Booth, 21 How. 506. The objection was overruled and the


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e of ide for dischargede, built intal liberty arqand arbitrary

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marshal was instructed to take Bridges into his custody during the pendency of these proceedings.

The following opinion was delivered by

ERSKINE, J. From the earliest period of the common law, no freeman could be detained in prison except upon a criminal charge, or civil action. In the former case, it was always in his power to demand of the supreme court of criminal jurisdiction in the kingdom a habeas corpus, commanding the party restraining him to produce the body before the court, with the cause of detention, that it might inquire into its sufficiency, and either remand, bail, or discharge the prisoner. The ancient barrier against oppression was, at Runnymede, built into that portion of the wall of the great charter which protects the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation. As is well established in legal history, this statute was confirmed many times by parliament. And it was tersely said by Sir Edward Coke, during the debate in the House of Commons on the petition of right, “ Magna Charta is such a fellow that he will have no sovereign.” The very essence of the 29th chapter of the charter is, among other immunities from oppression, incorporated into the fifth article of amendment of the National Constitution.

The framers of the Constitution, actively mindful of the value of this remedy, guaranteed its permanence by a provision in that instrument, that its privilege shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. The Judiciary Act of 1789 provided that each of the several national courts, as well as either of the justices of the supreme court and district judges, should have power to grant the writ of habeas corpus, with the proviso, however, that it “shall, in no case, extend to persons in jail, unless where they are in custody under or by color of authority of the United States, or committed for trial before a court thereof, or are necessary to be brought into court to testify.” And by the terms of the 7th section of the Act of March 12, 1833, it may be granted, in all cases of a prisoner in jail, when he shall be committed on or by any authority of law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof. This was followed by the Act of August 29, 1842, which concerns international law. To give greater vitality to the writ, and to extend its efficacy, Congress passed the Act of February 5, 1867. The first section enacts: “ That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty, to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing, &c. .... and the said justice or judge, to whom such application shall be made, shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the Constitution or laws of the United States. . .. . The said court or judge shall proceed Brown v. United States.

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in a summary way to determine the facts of the case by hearing testimony and the arguments of the parties interested ; and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the Constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty,” &c. See United States Revised Statutes, sects. 751–766, where the various habeas corpus acts are grouped.

The question for consideration is, to me, one of original impression, and it might have been determined elsewhere, and probably before now, had a different course been pursued in the state court; had the petitioner Bridges, on his arraignment there, demurred for want of jurisdiction appearing upon the record,- that the offence charged was committed beyond the jurisdiction of that or any other court of this state, and within the jurisdiction of another government; or shown these facts in evidence under the plea of not guilty; or, on return of the verdict, moved in arrest of judgment; and if in any of these instances, or on the overruling of his motion for a new trial, the decision was adverse to him, he could have carried his case to the state supreme court, — a tribunal presided over by judges of distinguished ability, and if that court affirmed the judgment of the lower tribunal, still he had the privilege to sue out a writ of error from the supreme court of the United States, and have the question reexamined there; but as a duty has presented itself, and as this duty has devolved upon me, it will be performed — performed, I trust, without marring the harmony, or weakening the ties of comity between the state and national authorities.

The judiciary power of every government can look beyond its own municipal laws in civil cases, and take cognizance of all subjects of litigation between parties within its territorial limits and jurisdiction, though the controversy relate to the laws of a foreign country. But, as regards crime, the rule is otherwise ; for the courts of one state or nation will not hold cognizance of, nor enforce the criminal laws of another. And as to crimes made so by legislative enactments, the government of the United States stands in the same relation to the government of this state as any foreign power. Mr. Justice Story, in giving the opinion of the supreme court in Martin v. Hunter, 1 Wheat. 304, said : “ No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to state tribunals.”

Thus it is manifest, that the state courts cannot hold criminal jurisdiction over offences exclusively existing as offences against the United States ; for every criminal prosecution must charge the crime to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose authority can pardon him.

In Commonwealth v. Tenny, 97 Mass. 50, the supreme judicial court of Massachusetts held that the offence of embezzlement, by a person in the employment of a national bank located in that state, of the property of individuals deposited in such bank, not being punishable under any existing law of the United States, the state courts had jurisdiction thereof, under the state statutes. The court said: “There is no view of the relation of the concurrent power of the two governments which affects the decision in the present case ; for all courts and jurists agree that stato sovereignty remains unabridged for the punishment of all crimes committed

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