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Opinion of the Court.

the constable; there was no case pending in the county court, and the justice had not even committed the prisoner to await the action of that court; and no indictment was found, or other action taken, in the county court, until after the petition had been filed in the Federal court.

By the terms of section 643, it is only after" any civil suit or criminal prosecution is commenced in any court of a State," and "before the trial or final hearing thereof," that it can "be removed for trial into the Circuit Court next to be holden in the district where the same is pending," and "shall proceed as. a cause originally commenced in that court."

Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offence, which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution, than is an arrest by an officer without a warrant for a felony committed in his presence.

We are aware that under this section the opposite view has prevailed in some cases in the Circuit Courts. Georgia v. Port, 4 Woods, 513; Georgia v. Bolton, 11 Fed. Rep. 217; North Carolina v. Kirkpatrick, 42 Fed. Rep. 689. But the only authorities there cited, which afford any color for that conclusion, were English decisions that the preliminary arrest upon the warrant of a justice of the peace took a case out of the statute of limitations, defining the time after the commission of the offence within which "the prosecution shall be commenced." Rex v. Willace, 1 East P. C. 186; The Queen v. Brooks, 1 Denison, 217; S. C. 2 Car. & K. 402. The question whether the government has taken such action, as will stop the running of a statute of limitations, is quite different from the question when a prosecution can be deemed to be commenced, within the meaning of the acts of Congress authorizing removals from the state courts into the courts of the United States for trial.

A grand jury, whether of the State or of the United States, is empanelled and sworn to inquire into and present offences

Opinion of the Court.

against that government only, under whose authority it is summoned. Story on the Constitution, § 1784. The grand jury summoned and empanelled under the authority of a State is the only appropriate body to inquire into any offence against the State, and to find or to ignore an indictment therefor. The duty of the grand jury attending a court of the United States is limited to inquiring into and presenting offences against the laws of the United States, and its proper advisers in matters of law are the court and the attorney of the United States.

In a criminal case removed from the state court into the Circuit Court of the United States after indictment found, the Circuit Court of the United States tries the case upon the accusation presented by a grand jury of the State, and framed with the assistance of the law officers of the State. Tennessee

v. Davis, 100 U. S. 257, 271.

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But if a person arrested to await the finding of an indictment may remove the case before an indictment is found, the accusation is not framed and presented by the officers and the grand jury of the State whose criminal law has been violated, but by the officers and grand jury of another government; and the Circuit Court of the United States has not only to try the defendant, but also to charge its own grand jury as to the accusation against him on behalf of the State; and this too in a case in which the very ground of removal into the Circuit Court is the defendant's suggestion that he needs the protection of the Constitution and laws of the United States against the prosecution by the State.

We cannot believe that such was the intention of Congress in the statutes enacted to secure a fair and impartial trial between the State seeking to vindicate its public justice, on the one hand, and a defendant claiming the protection of the Constitution and laws of the United States, on the other.

In any case falling within the purview of the acts of Congress, the defendant is adequately protected against danger of unlawful oppression from the courts or authorities of the State, by the right to remove it into the Circuit Court of the United States, as soon as a prosecution has been commenced

Opinion of the Court.

against him; and by the right to apply to any court or judge of the United States for a writ of habeas corpus under sections 751-753, whenever he "is in custody for an act done or omitted in pursuance of a law of the United States."

The true rule on this subject, as it appears to us, was forcibly and accurately expressed by Mr. Justice Grier, in a case removed from the court of quarter sessions of Bucks County in the State of Pennsylvania, before indictment found, into the Circuit Court of the United States for the Eastern District of Pennsylvania, under the act of Congress of March 3, 1863, c. 81, § 5, (12 Stat. 756,) since incorporated in section 641 of the Revised Statutes, and which, though differing from the statute now in question in requiring the petition for removal to be originally filed in the state court, yet, in substantial accord with this statute, provides that, "if any suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person," for any such act as is therein described, done by virtue or under color of authority of the United States, the defendant may file a petition "for the removal of the cause for trial at the next Circuit Court of the United States to be holden in the district where the suit is pending." Mr. Justice Grier, after quoting these words, ordered the case to be remanded to the state court, for the following reasons: "The petition of the defendants brings their case fully within the provisions of this section, but the removal is premature. The prosecution has not been commenced in the state court. warrant has been issued by a justice of the peace, and the defendants have been arrested preparatory to the commencement of a prosecution in the state court, but the attorney for the Commonwealth has not sent a bill to the grand jury. We do not know, therefore, whether the Commonwealth of Pennsylvania intends to prosecute the defendants for the alleged offence, or whether the grand jury will find a bill, without which the prosecution cannot be said to be commenced in the state court.' The act contemplates the removal of a prosecution 'pending' that a 'trial' may be had in the Circuit Court. If the attorney of the United States were required to send a

Opinion of the Court.

bill of indictment before a grand jury of the United States court for a breach of the peace of the State, it would present a truly anomalous proceeding. Yet without it there would be no case to try in the Circuit Court. If a bill of indictment had been found in the state court, it would have presented such a case; but, until this is done, there is no case pending in the court of Bucks County, which can be removed to this court for trial." Commonwealth v. Artman, 3 Grant, 436; S. C.

5 Phila. 304.

It appearing upon the face of the petition for removal, as well as by the copies of records laid before this court, that no prosecution had been commenced in the state court, within the meaning of section 643 of the Revised Statutes, when the petition for removal was drawn up and sworn to, nor even when it was filed in the Federal court, the prosecution subsequently commenced by the presentment of an indictment in the state court was never lawfully removed into the Circuit Court of the United States; for, in all cases of removal from the state courts, the jurisdiction of the Circuit Court of the United States rests and depends upon the statements made in the petition for removal, and verified by the oath of the petitioner. Virginia v. Rives, 100 U. S. 313, 316; Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Graves v. Corbin, 132 U. S. 571, 590.

The result is that the Circuit Court of the United States has, without authority of law, assumed jurisdiction of an indictment found in the courts of the State of Virginia for a crime against the laws of the State, and that the State is entitled to have the prosecution remanded to its courts to be there dealt with according to law. For aught that appears on this record, the State is not bound to commence or to carry on the prosecution in the courts of another government, but is entitled to resume its own rightful jurisdiction and authority, and to try the offender in its own courts. If the case should be allowed to proceed in the Circuit Court of the United States, and should finally result in an acquittal of the charge, in whole or in part, the State could not have a writ of error to review the judgment. United States v. Sanges, 144 U. S.

Opinion of the Court.

310. A stronger case for issuing a writ of mandamus can hardly be imagined. The writ may be directed to the judge who has unlawfully assumed jurisdiction of the prosecution; and no previous motion to him to remand the case was necessary. The case is governed in every particular by Virginia v. Rives, 100 U. S. 313, 316, 323, 324.

If any delay on the part of the State, in a case of this kind, could justify a denial of the writ of mandamus, no unreasonable delay is here shown. So far as appears by the copies of records submitted to us by both parties, the Circuit Court of the United States first took jurisdiction of the indictment on Saturday, May 14, 1892. It is alleged by the petitioner, and not denied by the respondent, (although the fact does not appear of record,) that on that day a motion to remand the case to the state court was made by the State, and denied by the Circuit Court. The accused was found guilty of voluntary manslaughter on Monday, May 16, the very day on which October term 1891 of this court was finally adjourned. On the next day, the District Judge set aside the verdict, continued the case to October term 1892 of the Circuit Court, and admitted the accused to bail on his own recognizance. On the first day of the present term of this court, and before any further proceedings in the Circuit Court, the State applied to this court for leave to file the petition for a mandamus.

The necessary conclusion is that the State of Virginia is entitled to a writ of mandamus to compel the respondent to remand the indictment and prosecution against Carrico to the county court in which the indictment was found.

The matter of the discharge of the prisoner by the District Judge upon the writ of habeas corpus may be more briefly disposed of. If that writ had been a writ of habeas corpus cum causa, issued by the clerk of the Circuit Court, as ancillary to a removal of the prosecution into that court, under section 643, the remanding of the cause would carry with it the right to the custody of the prisoner. But being, as appears by the records annexed to the petition for a mandamus, as well s by the return to the rule to show cause, an ordinary writ of as corpus, issued by the District Judge upon the ground

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