Statement of the Case.

was not issued by the clerk, as provided in that section, but by the District Judge, and on December 18, 1891, "whereas," the judge said, "the petition for removal, as shown by record evidence used in the discussion of this motion, was not filed in the clerk's office of the Circuit Court until December 19, 1891." His opinion on this motion is in the record, and is published in 51 Fed. Rep. 200. The appeal from the order of January 12 does not appear to have been prosecuted.

The copy of the record of the Circuit Court of the United States, annexed to the petition for a mandamus, was of the proceedings at the regular May term 1892 of that court, at Abingdon, held by Judge Paul, in the case entitled "Commonwealth of Virginia v. Joseph H. Carrico, Indictment for murder from Smyth County court;" and began, under date of Saturday, May 14, with the following memorandum :

"Be it remembered that heretofore the said Joseph H. Carrico presented a petition for the removal of the case aforesaid, and herein charging him with the murder of James M. Nelson, from the county Court of Smyth County, Virginia, to the Circuit Court of the United States for the Western District of Virginia, at Abingdon, Virginia, (and for a writ of habeas corpus,) to the Judge of the District Court of the United States for the Western District of Virginia; and upon return of W. D. Wilmore, jailor of Smyth County, Virginia, and upon the hearing of the evidence and arguments of counsel, an order was entered in the said District Court of the United States for the Western District of Virginia, on January 12, 1892, removing the said prosecution of the Commonwealth of Virginia v. Joseph H. Carrico into the Circuit Court of the United States for the Western District of Virginia, in the Fourth Circuit, at Abingdon, Virginia, for further proceedings and trial; and said indictment, with the endorsements thereon, is in the words and figures following, viz:"

Then followed a copy of the indictment, with the endorsement "a true bill," by the foreman of the grand jury, and also endorsed as "a transcript from the record," by the clerk of the county court. The record of the Circuit Court further showed that on May 14 the attorney general of Virginia and

Counsel for Petitioner.

the county attorney came in, and that the prisoner appeared, as required by his recognizance, was arraigned upon the indictment, pleaded not guilty, was tried by a jury, and on Monday, May 16, found guilty of voluntary manslaughter; and that on May 17 the court, upon his motion, set aside the verdict and granted a new trial, continued the case to the next term, and admitted him to bail upon his own recognizance.

Upon motion of the Commonwealth of Virginia on the first day of this term, and before any further proceedings were had in the Circuit Court, this court gave leave to file the petition for a mandamus, and granted a rule to Judge Paul to show cause why a writ of mandamus should not issue as prayed for. The judge, in his return to the rule, referred to the petition for removal and for a writ of habeas corpus, and the proceedings concerning the habeas corpus and those upon the indictment, as appearing in the copies of records annexed to the petition for a mandamus; set forth the grounds of his action substantially as in his opinions above mentioned; and specifically stated that the writ of habeas corpus was issued, not under section 643 of the Revised Statutes, but under section 753, which authorizes the writ when a prisoner "is in custody for an act done or omitted in pursuance of a law of the United States."

It was alleged in the petition for a mandamus, and in the brief for the petitioner, and was not denied in the judge's return, or in the brief of his counsel, that when the case of the indictment was called for trial in the Circuit Court of the United States, a motion was made by the Commonwealth of Virginia to remand the case to the county court, because the Circuit Court had no jurisdiction over the crime charged in the indictment, and because the removal of the prosecution from the county court was not authorized by law, but was contrary to the constitution and laws of Virginia, and to the Constitution and laws of the United States; and that this motion was denied by the Circuit Court.

Mr. R. Taylor Scott, Attorney General of the State of Virginia, for the petitioner.

VOL. CXLVIII-8

Opinion of the Court.

Mr. Assistant Attorney General Maury opposing.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The prosecution and punishment of crimes and offences committed against one of the States of the Union appropriately belong to the courts and authorities of the State, and can be interfered with by the Circuit Court of the United States so far only as Congress, in order to maintain the supremacy of the Constitution and laws of the United States, has expressly authorized either a removal of the prosecution into the Circuit Court of the United States for trial, or a discharge of the prisoner by writ of habeas corpus issued by that court or by a judge thereof. Tennessee v. Davis, 100 U. S. 257; Virginia v. Rives, 100 U. S. 313; Davis v. South Carolina, 107 U. S. 597; In re Neagle, 135 U. S. 1; Huntington v. Attrill, 146 U. S. 657, 672, 673.

In the case at bar, Joseph H. Carrico, having been arrested under a warrant from a justice of the peace of the county of Smyth on a charge of murder, was discharged by the District Judge on writ of habeas corpus from the commitment under state process; and having afterwards been indicted by the grand jury of the county for that offence, and committed by order of the county court for trial upon the indictment, the prosecution against him was assumed to have been removed into the Circuit Court of the United States for trial, and was there tried.

The State of Virginia, by petition for a writ of mandamus, questions the validity both of the removal and of the discharge, and it will be convenient to consider the two separately, beginning with the removal.

It is contended by the respondent that the prosecution was rightly removed into the Circuit Court of the United States under section 643 of the Revised Statutes, (the constitutionality of which was affirmed in Tennessee v. Davis, and in Davis v. South Carolina, above cited,) authorizing the removal into the Circuit Court of the United States for trial of "any

Opinion of the Court.

civil suit or criminal prosecution ""commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law."

It is important, therefore, to consider whether the conditions. of that section have been complied with.

By that section, it is only when the suit or prosecution has been "commenced in any court of a State," and "at any time before the trial or final hearing thereof," that it "may be removed for trial into the Circuit Court," "upon the petition of such defendant to said Circuit Court, and in the following manner:" The petition must set forth the nature of the suit or prosecution, and be verified by affidavit, and supported by certificate of counsel. It "shall be presented to the said Circuit Court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office." "The cause shall thereupon be entered on the docket of the Circuit Court, and shall proceed as a cause originally commenced in that court." The clerk of the Circuit Court is required, when the case is commenced in the state court otherwise than by capias, to issue a writ of certiorari to the state court for the record; and, when it is commenced by capias, to "issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court or left at his office by the marshal;" "and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the Circuit Court, and any further proceedings, trial or judgment therein in the state court shall be void."

The removal of the case out of the jurisdiction of the state court and into the exclusive jurisdiction of the Circuit Court of the United States takes place, without any order of the Circuit Court, as soon as the state court, by the service upon it, or

Opinion of the Court.

upon its clerk, of the appropriate process, whether certiorari or habeas corpus cum causa, has notice of the filing of the petition in the Circuit Court. But it is only after such formal notice has been given, that the jurisdiction is transferred from the state court to the national court. The proceedings under this section differ from those under section 641, in which the petition for removal is required to be filed in the state court, and is of itself notice to that court, and therefore, "upon the filing of such petition, all further proceedings in the state court shall cease," and, if the petition shows a sufficient ground for removal, the case is in legal effect removed. Virginia v. Rives, 100 U. S. 313, 316. But under either section the jurisdiction of the state court is not taken away until it has notice, in one form or other, of the petition for removal; under section 641, by the petition filed in that court; under section 643, by notice from the clerk of the Circuit Court of the petition there filed.

The records of the District Court and of the Circuit Court, copies of which are annexed to the petition for a mandamus, present a curious and complicated condition of things, in which some of the confusion may be owing to the facts, that not only is the District Judge a judge of either court, but that in the Western District of Virginia both courts are held at the same times and places and have the same clerk. Rev. Stat. §§ 572, 609, 622, 658; Act of September 25, 1890, c. 922, 26 Stat. 474.

The petition for removal, praying also for a writ of habeas corpus cum causa, was evidently framed under section 643 of the Revised Statutes, and was addressed to the District Judge as "Judge of the United States Circuit Court;" and it is said, in his opinion delivered on allowing an appeal to this court from his order of January 12 upon the habeas corpus, that "the petition for removal, as shown by record evidence used in the discussion of this motion, was not filed in the clerk's office of the Circuit Court until December 19, 1891." 51 Fed. Rep. 202.

But that record evidence, all of which is in the record now before us, shows only that the petition was filed in the clerk's