Prologue — Maryland v. Soper (No. 1)

Supreme Court brief1926

Ask Donna

What actually matters in this document.

Text

INDEX.

Morion ror Leave tro Fite Petirion ror WRIT OF

RN 2 > rigs Vig ola ba eine WHE a eR

Petition ror Writ or MANDAMUS.............-000-

‘“Exuipir A’’—Certiriep Copy oF ALL ORIGINAL

Papers AND Docker E\nrrigs IN THE District Court

OF THE UNITED States FoR THE District or Mary-

SE EP RP Pend ee ee" Pais sucks Sala a anes wal dee

Docket Entries ............ CSET ee OR EK Oe

Original petition for removal, ete., and order of

Se re rarer es tree re

Order of removal, writ of certiorari and habeas

rrr rr errr rer re

Motion to quash and remand oe original peti-

eer errr rr ry Seed Panes

Order granting leave to amend petition........

Amended petition for removal and order of

|, ES A Serge Ske eRe ee eeas

Seer reer yr Pr reo Pierre ,

Order overruling motion to quash and remand.

| PORE ETTE Teer CTT ee eT eee eee

“Wxurpit B’’—Certiriep Copy or Recorp or PRocEEp-

incs or Crrcuir Court ror Harrorp County, Fmep

IN THE District Court oF THE UNITED STATES FOR

THE District or Mary.anp, Fespruary 21, 1925...

Presentment

15-41

16-17

18-22

23-24

25-26

28-35

36-37

38-39

40-41

42-49

I kan on Sanee son bbe ea dns 44-46

DR ce tae ddudabcdcss aces eweede< ss 46-47

Order of District Court of the United States for

the District of Maryland, commanding the

transmission of record of proceedings to Dis-

trict Court of the United States for the Dis-

IND bindccccdccncasndcksicnnen 47

Certificate of the Clerk of the District Court of

the United States for the District of Maryland

to the aforegoing papers, comprising ‘‘ Exhibit

A’’ and ‘‘ Exhibit B’’, and to the docket entries

IEE IS ond on dn udeen cde anesenas 48

Certified eupy of docket entries—Cirecuit Court

a Scan caacadseakase wie 49

In THE

Supreme Court of the United States

IN THE MATTER OF THE APPLICATION OF THE

STATE OF MARYLAND FOR A WRIT OF MAN-

DAMUS DIRECTED TO THE HONORABLE,

MORRIS A. SOPER, JUDGE OF THE DISTRICT

COURT OF THE UNITED STATES FOR THE

DISTRICT OF MARYLAND, AND DIRECTED

ALSO TO SAID COURT.

CASE “A”.

MOTION FOR LEAVE TO FILE PETITION FOR

WRIT OF MANDAMUS.

Mr. CLERK:

Please file.

THOS. H. ROBINSON,

Attorney General of Maryland,

HERBERT LEVY,

Assistant Attorney General of Maryland,

Attorneys for the State of Maryland.

Srate oF MaryLanpv

vs.

Morris A. Soprer, JuDGE oF

tHE District Court oF IN THE

THE Unirep SraTes FOR SUPREME COURT

THE District oF Mary- OF THE

LAND, AND THE District UNITED STATES.

Court OF THE UNITED

States FoR THE DistRIcT

oF MaryLanp.

CASE “A”.

To the Honorable, William Howard Taft, Chief Justice,

and the Associate Justices of the Supreme Court of

the United States:

Now comes the petitioner, the State of Maryland, by

Albert C. Ritchie, its Governor, and moves the Court for

leave to file the petition for writ of mandamus hereto

annexed; and further moves that an order and rule be

entered and issued directing Morris A. Soper, Judge of

the District Court of the United States for the District

of Maryland, and also directing the said District Court

to show cause why a writ of mandamus should not issue

against them and each of them in accordance with the

prayer of said petition, and why your petitioner should

not have such relief and such other and further relief in

the premises as may be just and meet.

THOS. H. ROBINSON,

Attorney General of Maryland,

HERBERT LEVY,

Assistant Attorney General of Maryland,

Attorneys for Petitioner.

eo, eee .

y eres, De en

In THE

Supreme Court of the United States

IN THE MATTER OF THE APPLICATION OF THE

STATE OF MARYLAND FOR A WRIT OF MAN-

DAMUS DIRECTED TO THE HONORABLE,

MORRIS A. SOPER, JUDGE OF THE DISTRICT

COURT OF THE UNITED STATES FOR THE

DISTRICT OF MARYLAND, AND DIRECTED

ALSO TO SAID COURT.

CASE “A”.

PETITION FOR WRIT OF MANDAMUS.

Mr. CLERK:

Please file.

THOS. H. ROBINSON,

Attorney General of Maryland,

HERBERT LEVY,

Assistant Attorney General of Maryland,

Attorneys for the State of Maryland.

Stare or Maryann

vs.

Morris A. Soper, JUDGE OF

IN THE

THE District Court oF SUPREME COURT

tHE UNITED STATES FOR oo “en

THE District or Mary- UNITED STATES.

LAND, AND THE DistRICT

Court or THE UNITED

States FoR THE DIsTRICT

or MarRYLAND.

CASE “A”.

To the Honorable, William Howard Taft, Chief Justice,

and the Associate Justices of the Supreme Court of

the United States:

Your petitioner, the State of Maryland, by Albert C.

Ritchie, its Governor, respectfully shows unto your Honors

that the jurisdiction of the Cireuit Court fer Harford

County, a Court clothed by the Constitution and laws of the

State of Maryland with original criminal jurisdiction, has

beer. invaded by Morris A. Soper, Judge of the District

Court of the United States for the District of Maryland,

and by the said District Court, whose acts and doings com-

plained of are as follows, to wit:

1. On the 10th day of February, 1925, Robert D. Ford,

John M. Barton, E. Franklin Ely, Wilton L. Stevens and

William Trabing were indicted in the Circuit Court for

Harford County, State of Maryland, for the murder, on or

about the 19th day of November, 1924, of one Lawrence

Wenger, a citizen of the State of Maryland. On the 11th

day of February, 1925, said Judge, Morris A. Soper, and the

said District Court, issued an order, directed to the Cir-

cuit Court for Harford County and the Judge and the

Clerk thereof, whereby he caused the said prosecution,

styled ‘‘State of Maryland vs. Robert D. Ford, John M.

Barton, E. Franklin Ely, Wilton L. Stevens and William

Trabing,’’ to be removed from the Circuit Court for Har-

ford County to the District Court of the United States for

the District of Maryland, upon the supposed authority of

Section 33 of the Judicial Code (U. S. Comp. St., Sec. 1015,

being Judicial Code, Sec. 33, as amended, Act Aug. 23,

1916, c. 99). The petition, upon which the said removal

was granted, alleged that on the day when the murder is

alleged to have been committed, ‘‘the petitioner William

Trabing was a chauffeur of the Reliable Transfer Com-

pany, and was at the time above mentioned, engaged and

employed by Edmund Budnitz, the Federal Prohibition

Director of the State of Maryland, in the capacity of a

chauffeur for Federal Prohibition Agents, Robert D. Ford,

John M. Barton, Wilton L. Stevens and E. Franklin Ely, all

being officers of the Internal Revenue Service of the United

States; that the said petitioner, William Trabing, was at

the said time a person acting under and by authority of the

said Federal Prohibition Director, Edmund Budnitz and

the said Federal Prohibition Agents, Robert D. Ford, John

M. Barton, Wilton L. Stevens and E. Franklin Ely, and

that the said agents were on November 19th, 1924, and now

are Federal Prohibition Agents of the Bureau of Internal

Revenue of the Treasury Department of the United States.’’

For convenience, however, all of the said petitioners will be

hereafter designated as ‘‘ Federal Prohibition Agents.”’

2. Upon said petition, the said Judge, Morris A. Soper,

by ‘‘writ of habeas corpus cum causa,’’ also took the

bodies of the aforesaid Federal Prohibition Agents from

the custody of the jailor of Harford County, and let said

Federal Prohibition Agents to bail.

3. After the record of the proceedings of the Circuit

Court for Harford County was filed in the said District

Court of the United States for the District of Maryland,

the State of Maryland, on the 12th day of March, 1925,

appeared specially in the said District Court, held at Bal-

timore, Maryland, and moved the said Court to quash the

writ and rescind the order issued by the said District Court

on the 11th day of February, 1925, as aforesaid, and to

remand the said case to the Circuit Court for Harford

County, for the following reasons:

(a) Because the allegations of the petition for removal

failed to disclose a state of facts entitling the Federal Pro-

hibition Agents to have the said writ issued.

(b) Because the allegations set forth in said petition

were contradictory, evasive, founded on hearsay and in part

untrue.

tions of said petition and the certificate of counsel attached

thereto was beyond the power and jurisdiction of the said

District Court as limited by the Constitution and laws of

the United States.

(d) Because the said writ, if allowed to stand, consti-

tuted an interference by the said District Court with the

due and orderly administration of justice in the Circuit

Court for Harford County, contrary to the Constitution

and laws of the United States.

(e) Because there was no allegation in the petition that

authorized the said District Court to issue any writ what-

soever against the Judge or the Clerk of the Circuit Court

for Harford County.

4. The said motion to remand was fully argued before

the said Judge of the said District Court on the 17th day

of March, 1925, and on the same day the said Judge, being

of the opinion that the said petition for removal was de-

fective, upon application by the United States on behalf of

the said Federal Prohibition Agents, granted leave to the

United States to amend said petition for removal.

5. Thereafter, to wit, on the 31st day of March, 1925, the

said Federal Prohibition Agents filed their amended peti-

tion in said cause, pursuant to the leave granted them by

the aforesaid order of March 17th, 1925, whereupon the

State of Maryland again appeared specially in said cause

and again moved to quash the writ and rescind the order

of February 11th, 1925, and to remand the said case to the

Circuit Court for Harford County, and assigned substan-

tially the same reasons for the said ‘‘motion to quash and

remand’’ as those set forth in its ‘‘motion to quash and

remand’? filed in reply to the original petition for removal,

as aforesaid.

6. On the 5th day of May, 1925, after a second hearing

the said Judge and the said Court denied the motion to

remand the case to ite Circuit Court for Harford County,

and ratified and confirmed the order of February 11th, 1925,

removing the said cause to the said District Court from the

Cireuit Court for Harford County.

7. Your petitioner files with its petition, and prays to be

taken as part and parcel hereof, a certified copy of the

record in ‘‘State of Maryland vs. Robert D. Ford, John M.

Barton, E. Franklin Ely, Wilton L. Stevens and William

Trabing,’’ in the District Court of the United States for

the District of Maryland, marked ‘‘ Exhibit A,’’ and a cer-

tified copy of the record in ‘‘State of Maryland vs. Robert

D. Ford, John M. Barton, E. Franklin Ely, Wilton L.

Stevens and William Trabing,’’ in the Cireuit Court for

Harford County, marked ‘‘ Exhibit B.’’

8. Your petitioner avers and charges that the action

and conduct of Judge Soper were a gross violation of the

Constitution and laws of Maryland and of the Constitution

and laws of the United States, because neither the said

District Court of the United States for the District of

Maryland nor Judge Soper had jurisdiction over the case

unlawfully removed by the said Judge Soper, as aforesaid.

The prosecuiton is in the name of your petitioner; the crime

—murder—was committed within its territorial limits by

said Federal Prohibition Agents upon one Lawrence

Wenger, its citizen.

9. Your petitioner alleges that Judge Soper was not

authorized to remove the said prosecution, under Section

33 of the Judicial Code, upon the allegations of the orig-

inal petition for removal, because (inter alia) :

(a) Federal Prohibition Agents are not officers ‘“ap-

pointed under or acting by authority of any Revenue Law

of the United States’’ or persons ‘‘acting under or by auth-

ority of any such officer,’’ within the meaning of Section 33

of the Judicial Code.

(b) Said petition does not show that the criminal prose-

eution pending in the Cireuit Court for Harford County

was on account of any act done under color of the office of

the defendants in said prosecution, or under color of any

Revenue Law of the United States, or on account of any

right, title or authority claimed by the said defendants

under any Revenue Law of the United States, within the

meaning of said Section 33 of the Judicial Code.

that the prosecution for murder arose out of the discharge

of the official duties of the petitioners, as Federal Prohibi-

tion Agents, or in the discharge of their duties under the

National Prohibition Law, or that the said prosecution

grew out of an effort on the part of said Federal Prohibi-

tion Agents to protect themselves and each other in the dis-

charge of their duty.

(d) The said petition does not allege any facts to show

that the prosecution grew out of the performance by the

said petitioners of their official duties as Federal Prohibi-

tion Agents in making and attempting to make an investi-

gation of any violation of the National Prohibition Law by

Lawrence Wenger, the deceased, and further does not al-

lege that the said Lawrence Wenger had committed or was

suspected to having committed any violation of said Na-

tional Prohibition Law.

10. Your petitioner avers that the murder of the said

Lawrence Wenger by the said Federal Prohibition Agents

was wanton, wilful, deliberate, premeditated and without

any justification whatsoever, and that the said Federal

Prohibition Agents not only failed to set up any facts to

show that said prosecution grew out of an act done by them

under color of their office or of any Revenue Law, but, on

the contrary, their original petition for removal denies that

they were in any menner responsible, lawfully or otherwise,

for the homicide of the said Lawrence Wenger.

11. Your petitioner further avers that the amended peti-

tion for removal is also defective and insufficient for the

following reasons:

(a) It alleges that the said Federal Prohibition Agents

were acting under the direction of the Commsisioner of In-

ternal Revenue, the Federal Prohibition Commissioner and

the Federal Prohibition Director for the State of Maryland,

and were acting under the authority of and for the purpose

of enforcing the National Prohibition Act and acts supple-

mental thereto and all Internal Revenue Laws relating to

the manufacture, sale, transportation, control and taxation

of intoxicating liquors, with authority to execute and per-

form all the duties delegated to such officers by law, and

that at the time of the act alleged to have been done by them,

they were engaged in the discharge of their official duties

as Federal Prohibition Officers, in making and attempting

to make an investigation concerning a violation of the Na-

tional Prohibition Act and other Internal Revenue Laws

and in reporting the result of said investigation and in pro-

tecting themselves in the discharge of their duty, but

said amended petition does not specify the connection, if

any, of the said Lawrence Wenger, deceased, with the

breach of the provisions of the National Prohibition Act

or other Internal Revenue laws, which they were investi-

gating, or any other facts tending to show that the prosecu-

tion, which they sought to remove, grew out of any act done

under color of their office or of any such law.

(b) Taken in connection with the allegations of the orig-

inal petition, the amended petition clearly shows that in the

investigation which the said Federal Prohibition Agents

claim to have been making at the time of the acts and hap-

penings for which they were indicted they were acting in

the capacity of Federal Prohibition Officers under the Na-

tional Prohibition Law, and as such, they were not ‘‘Reve-

nue Officers’’ and are not entitled to have the prosecution

against them removed to the Federal Court under the pro-

visions of Section 33 of the Judicial Code.

Act, upon which the amended petition relies as additional

authority for the removal of the prosecution, does not,

either in its letter or spirit, authorize the removal of a

criminal prosecution pending in a State Court against a

Federal Prohibition Agent.

(d) The statement in the amended petition of the facts

alleged to bring the prosecution within the provisions of

Section 33 of the Judicial Code, clearly negatives the con-

tention of the said Federal Prohibition Agents that the

prosecution arose out of any act done under color of their

office or of the Revenue Laws and Prohibition Laws of the

United States. Said amended petition goes into great de-

tail with reference to the investigation which the said Fed-

eral Prohibition Agents were carrying on in Harford

County, but it does not point out that the said investigation

or any act done in pursuance thereof resulted in the prose-

cution sought to be removed. On the contrary, the amend-

ed petition specifically alleges that the said Federal Pro-

hibition Agents were returning to Baltimore to report to

the office of the Maryland Federal Prohibition Director con-

cerning the result of their investigation when they dis-

covered the said Lawrence Wenger, mortally wounded and

lying beside the path along which they were walking. They

deny they were in any manner responsible, either lawfully

or unlawfully, for the homicide of the said Lawrence Wen-

ger, or that they had any knowledge of how the said Wen-

ger came to his death, and in view of this denial, it is in-

conceivable that the prosecution against them, based as it

was upon said homicide, could have arisen on account of

any act done by them under color of their office or of any

Revenue Law or Prohibition Law of the United States.

(e) Section 33 of the Judicial Code does not contemplate

that the officers mentioned therein should be entitled to re-

move all causes or prosecutions brought against them dur-

ing their tenure of office merely by reason of their holding

said offices, but said act only applies to those actions and

prosecutions which arise out of any act done under color

of their office or the law under which they are acting, or on

account of any right, title or authority claimed by such

officers or other persons under any such law.

12. Your petitioner alleges that the constitution does

not confer upon Congress authority to define and punish

crimes against the State; that to permit such interven-

tion by the Federal power, your petitioner charges would

be the utter and complete destruction of the State sov-

ereignty and State automony.

13. Your petitioner is advised that murder is a com-

mon law offense; that Federal Courts have no common law

jurisdiction in criminal cases; therefore, the trial of the

ease of ‘‘State of Maryland vs. Robert D. Ford, John M.

Barton, E. Franklin Ely, Wilton L. Stevens and William

Trabing’’ must be held in the Circuit Court for Harford

County, which Court only has jurisdiction, and your peti-

tioner charges that Judge Soper by removing the said

case from the Circuit Court for Harford County to the Dis-

trict Court of the United States for the District of Mary-

land, and taking the said Federal Prohibition Agents from

the custody of the jailor of said county, acted not only with-

out authority and sanction of law, but in violation of law,

and his every act and order are null and void and should be

so adjudged.

14. Your petitioner further avers that in the prosecu-

tion aforesaid, no Federal question is involved; and that

the original and amended petitions for removal filed by

the said Robert D. Ford, John M. Barton, E. Franklin Ely,

Wilton L. Stevens and William Trabing pleaded no righ:

or privilege conferred by the Constitution and laws of the

United States.

15. Your petitioner is advised that the said Judge, Mor-

ris A. Soper, in removing the said case and in refusing to

remand the same upon the application of your petitioner,

has transcended the jurisdiction of his Court and has un-

dertaken the exercise of powers not vested in him or his

Court by any law of the United States.

PA ae

16. Your petitioner is informed and believes and

charges that it is the intention of the said Judge, Morris

A. Soper, by color of his office as Judge aforesaid, to try

the said Federal Prohibition Agents in the District Court

of the United States for the District of Maryland at the

present term of said Court, now being held in the City of

Baltimore, for the offense aforesaid, committed against the

laws of the State of Maryland, and thereby violate the Con-

stitution of Maryland, set aside its laws and usurp the jur-

isdiction of its Courts.

Your petitioner, therefore, prays that a rule may be

awarded by this Court requiring the said Morris A. Soper,

Judge of the District Court of the United States for the

District of Maryland, and the said District Court to show

cause why a mandamus should not be issued, forbidding

and preventing the said Judge and the said Court from

taking cognizance of said case, and from any, all and

every act connected with said trial, and commanding them

to remand the said case to the Circuit Court for Harford

County and to redeliver to the jailor of said Harford

County the bodies of the said Federal Prohibition Agents,

to be dealt with according to the laws of the said State.

And as in duty bound, ete.

ALBERT C. RITCHIE,

Governor of Maryland.

THOS. H. ROBINSON,

Attorney General of Maryland,

HERBERT LEVY,

Assistant Attorney General of Maryland,

Attorneys for the State of Maryland.

State oF Maryann,

Crry or Bautimorg, to wit:

I HEREBY CERTIFY, that on this twenty-fourth day

of September, 1925, before me the subscriber, a Notary

Public of the State of Maryland, in and for Baltimore City

aforesaid, personally appeared Albert C. Ritchie, Governor

of the State of Maryland, and made oath that the allega-

tions contained in the petition for mandamus hereto an-

nexed are true to the best of his knowledge, information and

belief.

WITNESS My hand and Notarial Seal.

(Notarial Seal.) ANNA DAVIS GREER,

Notary Public.

IN THE

Supreme Court of the United States

IN THE MATTER OF THE APPLICATION OF THE

STATE OF MARYLAND FOR A WRIT OF MAN.

DAMUS DIRECTED TO THE HONORABLE,

MORRIS A. SOPER, JUDGE OF THE DISTRICT

COURT FOR THE DISTRICT OF MARYLAND,

AND DIRECTED ALSO TO SAID DISTRICT

COURT.

CASE “A.”

EXHIBIT A.

Mr. CLERK:

Please file.

THOS. H. ROBINSON,

Attorney General for the State

of Maryland.

HERBERT LEVY,

Asst. Attorney General of the

State of Maryland.

EXHIBIT A.

Strate or Marytanp IN THE

vs. District Court OF THE

Rosert D. Forp, E. Frank Unitep States

Exy, Joun M. Barron, | FOR THE

Witton L. Stevens and District or MaryLanb.

WILuLiAM TRABING.

No. 7189 Criminal.

DOCKET ENTRIES.

1925.

Feby. 11—Petition of Defendants for removal of case

from Criminal Court of Harford County and

for a Writ of Habeas Corpus Cum Causa and

Order of Court directing Writ of Habeas Corpus

Cum Causa to issue to the Criminal Court of

Harford County filed.

Feby. 11—Writ of Habeas Corpus Cum Causa retble with-

in ten days issued. Copy of Writ, Copy Peti.

tion and Order sent to Marshal to be served.

(Copy of Writ and Petition and Order served

on J. H. Bradford, Deputy Clerk, Circuit Court

for Harford County, at Belair, Md., 12 Febr-

uary, 1925.)

Feby. 12—Defendants John M. Barton, Wilton L. Stevens,

EK. Frank Ely and William Trabing each recog-

nized in sum of Ten Thousand Dollars with

John W. Famous, John W. Galbreath, James

R. Galbreath and William B. Taylor in same

amount as to each recognizor for their appear-

ance from day to day as required to answer the

charge in this case.

Feby. 13—Defendant Robert D. Ford recognized in sum

of Ten Thousand Dollars with Albert G. Buf-

fington and Jesse H. Bratten in same amount

for his appearance from day to day as required

to answer the charge in this case.

Feby. 21—Record of Proceedings of Circuit Court for

Harford County filed.

Mch. 12—Motion to Quash Writ and rescind Order of

Court filed.

Mch. 17—Order of Court granting leave to the United

State to amend its petition filed.

Mch. 31—Amended Petition of Defendants for removal of

Case from Criminal Court of Harford County

and for a Writ of Habeas Corpus Cum Causa

filed.

April 11—Motion to Quash and remand Indictment for

Murder on Amended Petition filed.

May 5—Order of Court overruling Motion to Quash

and remand filed.

May 5—Stipulation filed.

PETITION FOR REMOVAL AND ORDER

OF COURT THEREON.

Filed February 11, 1925.

‘

State oF Maryann

vs. IN THE

Rosert D. Forp, Joun M. District Court oF THE

Barton, EK. Frank Ezy, Unirep States

Witton L. Stevens and FOR THE

Wiu1am TRaBina. District or Maryuanp.

To the Honorable, the Judge of said Court:

The Petition of Robert D. Ford, John M. Barton, E.

Frank Ely, Wilton L. Stevens and William Trabing, re-

spectfully represents:

1. That on or about the tenth day of February, in the

year of our Lord, nineteen hundred and twenty-five, an

indictment was returned into the Criminal Court for Har-

ford County, State of Maryland, by a Grand Jury of the

said Court, which indictment charged yonr Petitioners

with the crime of murder, contrary to the laws of the State

of Maryland, by reason of the fact that on or about the

nineteenth day of November, nineteen hundred and twenty-

four, it is alleged that your petitioner unlawfully and

feloniously did murder one Lawrence Wenger.

2. That on the nineteenth day of November, nineteen

hundred and twenty-four, the petitioner William Trabing

was a chauffeur of the Reliable Transfer Company and

was at the time above mentioned engaged and employed by

Edmund Budnitz, Federal Prohibition Director of the State

of Maryland, in the capacity of a chauffeur for Federal

Prohibition Agents, Robert D. Ford, John M. Barton, Wil-

ton L. Stevens and E. Frank Ely, all being officers of the

Internal Revenue Service of the United States; that the

said Petitioner William Trabing was at the said time a per-

son acting under and by authority of the said Prohibition

Director Edmund Budnitz and the said Federal Prohibition

Agents Robert D. Ford, John M. Barton, Wilton L. Stevens

and E. Frank Ely; and that the said agents were on Novem-

ber 19, 1924, and now are Federal Prohibition Agents of

the Bureau of Internal Revenue for the Treasury Depart-

ment of the United States.

3. That the act or acts done by the Petitioner William

Trabing, at the time when they are alleged to have been

guilty of the murder of one Lawrence Wenger, which charge

he denies was done by him while acting under and by

authority of Federal Prohibition Director Edmund Bud-

nitz and Federal Prohibition Officers Robert D. Ford, John

M. Barton, Wilton L. Stevens and E. Frank Ely, in the dis-

charge of their official duties as Prohibition Agents as

aforesaid and in discharge of his duty as chauffeur and

helper of the said agents in making and attempting to make

an investigation in the discharge of their duty and of his

duty as aforesaid and in protecting himself and the said

officers of the Internal Revenue in the discharge of his and

their duty.

4. That the act or acts done by the Petitioners Robert

D. Ford, John M. Barton, Wilton L. Stevens and E. Frank

Ely, at the time when they are alleged to have been guilty

of the murder of Lawrence Wenger, which charge they

deny, was done by them in the discharge of their official

duties as Prohibition Agents as aforesaid in making and

attempting to make an investigation in the discharge of

their duties as aforesaid and in protecting themselves us

fellow officers of the Internal Revenue in the discharge of

their duty.

5. That the said criminal prosecution commenced by

said indictment is now pending in the Criminal Court for

Harford County and is a criminal prosecution on account

of the acts alleged to have been done by your petitioners

in the course of the performance of their duties as Federal

Prohibition Agents, which acts they deny having done.

WHEREFORE, your Petitioners pray that the said suit

may be removed from the Criminal Court for Harford

County, aforesaid, to this Honorable Court and that writs

of certiorari and habeas corpus cum causa issue for that

purpose pursuant to the statute of the United States in

such case made and provided. (U.S. Compiled Statutes,

Sec. 1015, being Judicial Code, Sec. 33, as amended, Act

August 23, 1916, C. 399.)

E. FRANK ELY,

JOHN M. BARTON,

WILTON L. STEVENS,

WILLIAM M. TRABING,

ROBERT D. FORD,

By A. W. W. WOODCOCK,

United States Attorney for the

2/11/25. District of Maryland.

Unrrep Srares or America, District or MARYLAND, TO WIT:

I Hereby Certify, that before me, the undersigned, per-

sonally appeared John M. Barton, E. Frank Ely, Wilton

L. Stevens, Federal Prohibition Agents, William Trabing,

chauffeur for the said agents, and Amos W. W. Woodcock,

United States Attorney for the District of Maryland, and

made oath in due form of law that they are the persons

whose names are subscribed to the aforegoing petition, and

that they have read the petition, and the matters contained

therein are true in substance and in fact.

CHAS. W. ZIMMERMANN,

Chief Deputy Clerk of the District Court

of the United States for the District of

Maryland.

I, A. W. W. Woodcock, United States Attorney in and

for the District of Maryland, Do Hereby Certify that, as

attorney for the petitioners named above, I have examined

the proceedings against them mentioned in the aforegoing

petition and have carefully inquired into all the matters

set forth in the said petition and I believe the same to be

true. .

A. W. W. WOODCOCK,

United States Attorney.

———_--—-—_

ORDER.

Upon motion of A. W. W. Woodcock, United States At-

torney, attorney for Robert D. Ford, John M. Barton, E.

Frank Ely, Wilton L. Stevens and William Trabing, and

on filing the petition of the said Robert D. Ford, John M.

Barton, E. Frank Ely, Wilton L. Stevens and William

Trabing, praying for the removal to this Court from the

Criminal Court of Harford County, in the State of Mary-

land, in the criminal prosecution for murder against the

aa a eeneenieen

said Robert D. Ford, John M. Barton, E. Frank Ely, Wil-

ton L. Stevens and William Trabing in said Court, entitled

State of Maryland versus Robert D. Ford, John M. Barton,

KE. Frank Ely, Wilton L. Stevens and William Trabing, and

for the issuance of writs of certiorari and habeas corpus

cum causa for that purpose, pursuant to Section 33 of the

Judicial Code of the United States, and the Court having

read said petition, it is ORDERED this eleventh day of

February, nineteen hundred and twenty-five, that writs of

certiorari and habeas corpus cum causa issue herein di-

rected to the said Court requiring said Court to transmit

to this Court within ten days the record and proceedings

in said case.

MORRIS A. SOPER,

United States District Judge, United

States District Court for the Dis-

trict of Maryland.

ORDER OF REMOVAL, WRIT OF CERTIORARI AND

HABEAS CORPUS CUM CAUSA.

Issued February 11, 1925.

Sratre or Mary.anp

vs. IN THE

Rosert D. Forp, Joun M. District Court oF THE

Barton, E. Frank E ty, ‘ Unirep States

Witton L. Srevens and FOR THE

Wr1am Traine. District or MaRyuanp.

;

To the Honorable, the Circuit Court of Harford County

in the State of Maryland, the Judge of the Said Court

and the Clerk of the Said Court, Greeting:

Being informed that there is now pending before you a

suit in which the State of Maryland is plaintiff and Robert

D. Ford, John M. Barton, E. Frank Ely, Wilton L. Stevens

and William Trabing are the defendants, which said suit

is a criminal prosecution against the said Robert D. Ford,

John M. Barton, E. Frank Ely, Wilton L. Stevens and Wil-

liam Trabing, charging the defendants with the murder of

Lawrence Wenger, the said suit arising out of facts which

occurred while the said William Trabing was discharging

his duties as chauffeur and helper of the Prohibition

Agents, Officers of the Internal Revenue, the co-defendants,

and acting in and by authority of Federal Prohibition Di-

rector Edmund Budnitz and Federa) Prohibition Officers

Robert D. Ford, John M. Barton, Wilton L. Stevens and

KE. Frank Ely, who were acting in the discharge of their

official duties as Prohibition Agents, Officers of the Inter-

nal Revenue Service of the United States as aforesaid in

making and attempting to make an investigation in the

iat

discharge of their duty and in protecting themselves in the

discharge of their duty under the National Prohibition Act

of the said United States; and which said suit has not yet

been heard and determined.

Now, therefore, we being willing that said cause and the

records and proceedings therein should be certified by said

Judge of the Circuit Court of Harford County in the State

of Maryland, do hereby command you that you immediately

deliver the bodies of Robert D. Ford, John M. Barton, E.

Frank Ely, Wilton L. Stevens and William Trabing to the

castody of the United States Marshal to be dealt with in

this cause according to law and the order of the District

Court for the District of Maryland; and that you send,

without delay and within ten days to the District Court of

the United States, the records and proceedings in said cause

so that the said District Court of the United States may

act thereon as of right and according to the laws and cus-

toms of the said United States, among others, Section 1015

of the United States Compiled Statutes, being Judicial

Code, Sec. 33, as amended by its Act of August 23, 1916,

C. 399.

WITNESS the Honorable Morris A. Soper, Judge of

said District Court of the United States, this eleventh day

of February, A. D. nineteen hundred and twenty-five.

ARTHUR L. SPAMER,

Clerk of the District Court of the United

(Seal. ) States for the District of Maryland.

The foregoing Writ is thus endorsed:

“‘Copy of within Writ of Habeas Corpus Cum Causa and

Copy Petition for and Order of Removal, left with J. H.

Bradford, Deputy Clerk, Circuit Court of Harford County,

at Belair, Md., 12th day of February, 1925.

GEORGE W. COLLIER,

United States Marshal,

District of Maryland,

By: Gero. H. Epeten,

Chief Deputy Marshal.’’

MOTION TO QUASH AND REMAND. *

Filed March 12, 1925.

State or Maryann

vs. IN THE

Rosert D. Forp, Joun M. District Court oF THE

Barton, E. Frankun Exy, ' Unitep States

Witton L. Srevens and FOR THE

WituiaM TRaBING. District or Mary.anp.

7 (InpictMENT ror Murper.)

To the Honorable, Morris A. Soper, Judge of said Court:

The State of Maryland, by Thomas H. Robinson, its

Attorney General, and W. Worthington Hopkins, State’s

Attorney for Harford County, who appear specially for

the purposes of this motion, and for no other purpose,

move this Honorable Court to quash the writ and rescind

the order issued in the above entitled case, directed to the

Judge of the Circuit Court for Harford County, and the

Clerk thereof, and to remand the said case to the Circuit

Court for Harford County, for the following reasons:

(1) Because the allegations of the petition filed in this

case do not disclose a state of facts entitling the petitioners

to have said writ issued, or the charge against them re-

moved into this Court.

(2) Because the allegations set forth in said petition

are contradictory, evasive, founded on hearsay, and in part

untrue.

(3) Because the issuance of said writ upon the allega-

tions of said petition and attached certificate of counsel is

beyond the power and jurisdiction of this Court as limited

by the Constitution and laws of the United States.

(4) Because the said writ, if allowed to stand, consti-

tutes an interference by this Court with the due and orderly

administration of justice in the Circuit Court for Harford

County contrary to the Constitution and laws of the United

States.

(5) Because there is no allegation in said petition that

authorizes this Court to issue any writ whatsoever against

the Judge or the Clerk of the Circuit Court for Harford

County.

(6) And for other good and sufficient reasons to be

shown at the hearing.

THOS. H. ROBINSON,

Attorney General of Maryland.

W. WORTHINGTON HOPKINS,

State’s Attorney for Harford County.

ORDER GRANTING LEAVE TO AMEND PETITION.

Filed May 17, 1925.

State or Maryitanp IN THE

vs. District Court oF THE

Rozsert D. Forp, Joun M. Unitep States

Barton, E. Franxurn Ey, r FOR THE

Witton L. Srevens and District or MaRyLanp.

WituraM TRABING.

INDICTMENT FoR MuRDER.

This cause standing ready for hearing, and being sub-

mitted upon motion of the State of Maryland to quash the

writ and rescind the order issued in the above entitled case

on the 11th day of February, 1925, directed to the Judze

of the Circuit Court for Harford County, and the Clerk

thereof, and to remand the said case to the Cireuit Court

for Harford County, the counsel for the parties were heard

and the proceedings were read and considered; and the

United States having applied for leave of court to amend

the petition, it is therefore ordered this 17th day of March,

in the year 1925, by the District Court of the United States

for the District of Maryland:

That leave be and it is hereby granted to the United

States to amend said petition.

MORRIS A. SOPER,

United States District Judge.

AMENDED PETITION FOR REMOVAL AND

ORDER OF COURT.

Filed March 31, 1925.

State or Marytanp

vs. IN THE

Rosert D. Forp, Joux M. District Court oF THE

Barton, KE. Franxuin Ey, ‘ Unirep States

Witton L. Stevens and FOR THE

Wru1aAm TRaBING. District or Mary.anp.

——___.

AMENDED PETITION.

To the Honorable, the Judge of said Court:

The Petition of Robert D. Ford, John M. Barton, E.

Franklin Ely, Wilton L. Stevens and William Trabing,

respectiully represents:

1. That on or about the tenth day of February, in the

year of our Lord nineteen hundred and twenty-five, an in-

dictment was returned in the Circuit Court of the Third

Judicial Circuit of the State of Maryland by the Grand

Inquest of the State of Maryland for the body of Harford

County, which indictment charged your Petitioners with

the crime of murder, as follows:

“The Jurors of the State of Maryland, for the body of

Harford County, do on their oath present that Wilton L.

Stevens, John M. Barton, Robert D. Ford, E. Franklin Ely,

and William Trabing, late of Harford County aforesaid,

on the nineteenth day of November in the year of our Lord

nineteen hundred and twenty-four, at the County aforesaid,

feloniously, wilfully, and of their deliberate premeditated

malice aforethought did kill and murder Lawrence Wenger;

contrary to the form of the Act of Assembly in such case

made and provided; and against the peace, government,

and dignity of the State.

W. WortHincton Hopkins,

State’s Attorney for Harford County.”’

2. That on the twentieth day of N ovember, nineteen

hundred and twenty-four, the Petitioner William Trabing

was a chauffeur of the Reliable Transfer Company and was

at the time mentioned engaged and employed by Edmund

Budnitz, Federal Prohibition Director of the State of

Maryland, in the capacity of a chauffeur for Federal Pro-

hibition Agents Robert D. Ford, John M. Barton, Wilton

L. Stevens and E. Franklin Ely, all being officers of the

Bureau of Internal Revenue of the Treasury Department

of the United States, to act under the direction of the Com-

missioner of Internal Revenue, the Federal Prohibition

Commissioner, and the Federal Prohibition Director for

the State of Maryland, and to act under the authority of

and to enforce the National Prohibition Act and acts sup-

plemental thereto and all Internal Revenue Laws relating

to the manufacture, sale, transportation, control, and taxa-

tion of intoxicating liquors, with authority to execute and

perform all the duties delegated to such officers by law.

3. That the acts alleged to have been done by the Peti-

tioner William Trabing are alleged to have been done at a

time when he was engaged in the discharge of his duties

while acting under and by authority of Federal Prohibi-

tion Director Edmund Budnitz and Federal Prohibition

Officers Robert D. Ford, John M, Barton, Wilton L. Stevens

and E. Franklin Ely, as aforesaid, while the said officers

were engaged in the discharge of their official duties as

prohibition officers in making and attempting to make an

investigation concerning a violation of the National Prohi-

bition Act and other Internal Revenue Laws and while re-

porting and preparing to report the results of said investi-

gation and in protecting himself and the said officers of the

Internal Revenue in the discharge of his and their duty as

set out in Paragraph 4 below.

4. That the acts alleged to have been done by the ee

tioners Robert D. Ford, John M. Barton, Wilton L. Stevens,

and EK. Franklin Ely are alleged to have been done at a

time when they were en d_in the discharge of their

official duties as Federal Prohibition Officers, and in making

and attempting to make an investigation concerning a vio-

lation of the National Prohibition Act and other Internal

Revenue Laws, and in reporting the results of said investi-

gation, and in protecting themselves in the discharge of

their duty as follows:

That on November nineteenth, nineteen hundred and

twenty-four, your petitioners were directed by Maryland

Federal Prohibition Director Edmund Budnitz to investi-

gate the alleged unlawful distillation of intoxicating liquor

on a farm known as the Harry Carver Farm situated ap-

proximately three miles from the village of Madonna,

about twelve miles northwest from Bel Air, Maryland,

which said property was then unoccupied. Your petition-

ers reached the said farm premises shortly after midday

on November nineteenth, nineteen hundred and twenty-

four, and discovered there in a secluded wooded valley and

swamp materials for an illicit distilling operation, to wit,

nine empty mash boxes, three fifty-gallon metal drums, a

fifty-gallon condenser, about one thousand pounds of rye

meal in bags, a lighted fire, and men’s working clothes.

Your petitioners thereupon concealed themselves in woods

and shrubbery nearby the still site and shortly thereafter

became aware of the approach of a number of men bringing

with them a still. Your petitioners thereupon made their

presence known to the men who were approaching, and the

men immediately dropped the still and fled; and though

your etitioners 5 them across the oN no one of

etnies

we ‘petitioners poset to the still oy destroyed the

materials above mentioned which constituted the unlawful

distilling plant, and started to return to their ear which

had been left some distance from the still site, for the pur-

pose of returning to Baltimore to report to the office: of the

Maryland Federal Prohibition Direcior concerning the re-

sults of their investigation, when they discovered a man,

whom they afterwards learned to be one Lawrence Wegner,

mortally wounded and lying beside the path along which

they were walking, some 400 or 500 yards from the still

site and in a direction opposite to that from which the un-

known men had approached and towards which they fled.

Whereupon your petitioners carried the wounded man to

their car and took him to Jarrettsville, Maryland, for med-

ical treatment, but, finding none there available, proceeded

with all speed to Bel Air, where they sought out in turn

Doctors Richardson, Sappington and Archer, without suce-

cess, and finally placed the said Lawrence Wegner in charge

of Doctor Van Bibber, who pronounced him dead. Your

petitioners then, acting under the advice of the said Doctor

Van Bibber, removed the body of the said Lawrence Weg-

ner to the undertaking establishment of Dean and Foster

in Bel Air. Your petitioners then proceeded to the State’s

Attorney’s office in Bel Air and related the facts aforesaid

to the State’s Attorney; whereupon, on being informed by

them that your petitioners Robert D. Ford, John M. Bar-

ton, Wilton L. Stevens, and E. Franklin Ely were prohibi-

tion officers and that your petitioner William Trabing was

employed by the Federal Prohibition Director as their

chauffeur, they were placed under arrest by the Sheriff of

Harford County at the instance of the State’s Attorney

and were confined in the Harford County Jail until the

following morning, November twentieth, nineteen hundred

and twenty-four. On the morning of November twentieth,

nineteen hundred and twenty-four, your petitioners were

taken by the Sheriff and State’s Attorney, in company with

a number of men who that afternoon served upon the Cor-

oner’s Jury mentioned in the indictment, and in company

with two Baltimore City Police Headquarters Detectives,

to the scene of their investigation of the previous day.

They they related the facts concerning their investigation

of the unlawful distilling operation and their finding of the

said Lawrence Wenger on November nineteenth, and then

and there went over the scene of the said occurrences, relat-

ing freely and without reservation the events which took

place November nineteenth, in accordance with their duty

as investigating and reporting officers of the Federal Gov-

ernment and in compliance with their duties as Federal

Prohibition Officers. Likewise on the afternoon of Novem-

ber twentieth your petitioners were called before the Cor-

oner’s Inquest heretofore described in the indictment, and

freely and without reservation in accordance with their

duty as investigating and reporting officers of the Federal

Government and acting under the direction of the Mary-

land Federal Prohibition Director, related the facts afore-

mentioned. And thereupon they were again placed in the

Harford County Jail and held for the action of the Harford

County Grand Jury until their release on bail upon the

evening of November twentieth, nineteen hundred and twen-

ty-four, at the instance of the United States Attorney for

the District of Maryland acting on their behalf.

\eininten

5. That the said criminal prosecution was commenced

in the manner following:

A presentment against your petitioners was returned in

the Circuit Court for Harford County, February ninth,

nineteen hundred and twenty-five, following which present-

ment the State of Maryland, by the State’s Attorney for

Harford County, prosecuted and sued forth out of the Cir-

cuit Court for Harford County a Writ of the State of

Maryland of Capias Ad Respondendum against your peti-

tioners, to which there was no return by the Sheriff of Har-

ford County, whereupon the indictment heretofore set forth

was returned.

The said indictment is now pending in the Circuit Court

for Harford County and is a criminal prosecution on ac-

count of acts alleged to have been done by your petitioners

at a time when they were engaged in the performance of

their duties as Federal Prohibition Officers and chauffeur

for Federal Prohibition Officers as set forih in aforegoing

paragraphs.

WHEREFORE, your petitioners pray that the said sut

may be removed from the Circuit Court for Harford Coun-

ty, aforesaid, to this Honorable Court and that writs of

certiorari and habeas corpus cum causa may issue for that

purpose pursuant to the Statute of the United States in

such case made and provided. (U.S. Compiled Statutes,

Sec. 1015, being Judicial Code, See. 33, as amended, Act

August 23, 1916, C. 399; National Prohibition Act, Title II,

Section 28.)

ROBERT D. FORD,

JOHN M. BARTON,

E. FRANKLIN ELY,

WILTON L. STEVENS,

WILLIAM M. TRABING,

By A. W. W. WOODCOCK,

United States Attorney for the

District of Maryland.

3/30/25.

Unirep States or America, District or MaryLanp, To WIT:

I Hereby Certify that before me, the undersigned, per-

sonally appeared Robert D. Ford, John M. Barton, Wilton

L. Stevens, E. Franklin Ely, Federal Prohibition Agents,

and William Trabing, a chauffeur employed by the Federal

Prohibition Director, and made oath in due form of law

that they are the persons whose names are subscribed to

the aforegoing petition, and that they have read the peti-

tion, and the matters contained therein are true in sub-

stance and in fact.

CHAS. W. ZIMMERMANN,

Chief Deputy Clerk of the District Court

of the United States for the District of

11-30-25. Maryland.

I, A. W. W. Woodcock, United States Attorney in and

for the District of Maryland, do hereby certify that, as

attorney for the petitioners named above, I have examined

the proceedings against them mentioned in the aforegoing

petition and have carefully inquired into all the matters

set forth in the said petition and I believe the same to be

true.

A. W. W. WOODCOCK,

3/30/25. United States Attorney.

ORDER.

Upon motion of A. W. W. Woodcock, United States At-

torney, Attorney for Robert D. Ford, John M. Barton,

Wilton L. Stevens, E. Franklin Ely, and William Trabing,

praying for the removal to this Court from the Circuit

Court for Harford County in the State of Maryland, of the

Criminal Prosecution for Murder against the said Robert

D. Ford, John M. Barton, Wilton L. Stevens, E. Franklin

Ely, and William Trabing, and for the issuance of writs

of certiorari and habeas corpus cum causa for that purpose,

pursuant to Section 33 of the Judicial Code of the United

States, and Section 28 of Title II of the National Prohi-

bition Act, and the Court having read said petition, it is

ORDERED, this thirty-first day of March, nineteen

hundred and twenty-five, that writs of certiorari and habeas

corpus cum causa issue herein directed to the said Court

and to the Clerk of the said Court requiring them to trans-

mit to this Court within ten days the records and proceed-

ings in said case.

United States District Judge, United

States District Court for the District

of Maryland.

{

a SALIENT RAEI ATG MER

MOTION TO QUASH AND REMAND ON

AMENDED PETITION.

Filed April 11, 1925.

State oF Marytanp In THE

vs. District Court oF THE

Rosert D. Forp, Joun M. Unitep States

Bazton, KE. Franxuin Ey, FOR THE

Witton L. Stevens and District or MaryLanp.

Wiu1am TRraBIna.

(AmENDED Petition.)

MOTION TO QUASH AND REMAND—INDICTMENT

FOR MURDER.

To the Honorable, Morris A. Soper, Judge of said Court:

The State of Maryland, by Thomas H. Robinson, its At-

torney General, and W. Worthington Hopkins, State’s

Attorney for Harford County, who appear specially for

the purposes of this motion, and for no other purpose,

moves this Honorable Court to quash the writ and rescind

the order issued in the above entitled case, directed to the

Judge of the Circuit Court for Harford County, and the

Clerk thereof, and to remand the said case to the Circuit

Court for Harford County, for the following reasons:

1. Because the allegations of the second paragraph of

the amended petition are untrue.

2. Because the allegations of the petition filed in this

case do not disclose a state of facts entitling the petitioners

to have said writ issued or the charge against them re-

moved into this Court.

4. Because the issuance of said writ upon the allegations

of said petition and attached certificate of counsel is be-

yond the power and jurisdiction of this Court as limited by

the Constitution and laws of the United States.

5. Because the said writ, if allowed to stand, constitutes

an interference by this Court with the due and orderly ad-

ministration of justice in the Cireuit Court or Harford

County contrary to the Constitution and laws of the United

States.

6. Because there is no allegation in said petition that

authorizes this Court to issue any writ whatsoever against

the Judge or the Clerk of the Circuit Court for Harford

County.

7. And for other good and sufficient reasons to be

shown at the hearing.

THOMAS H. ROBINSON,

Attorney General of Maryland.

W. WORTHINGTON HOPKINS,

State’s Attorney for Harford County.

ROTEL LG RE RTS

ORDER OVERRULING MOTION TO QUASH

AND REMAND.

Filed May 5, 1925.

State or Maryianp IN THE

vs. District Court OF THE

Rosert D. Forp, Joun M. Unitep States

Barton, KE. Franxuiy Ey, j FOR THE

Witton L. Srevens and District oF MaryLanp.

Wiiuram TRaBING.

INDICTMENT FOR MURDER.

This cause standing ready for hearing and being submit-

ted upon motion of the State of Maryland to quash the writ

and rescind the order issued in the above entitled case on

the 11th day of February, 1925, directed to the Judge of

the Circuit Court for Harford County, and the Clerk there-

of, and to remand the said case to the Cireuit Court for

Harford County, the counsel for the parties were heard and

the proceedings were read and considered.

It is, therefore, this 5th day of May, 1925, ordered by the

District Court of the United States for the District of Mary-

land, that the said motion of the State of Maryland be and

the same is hereby overruled, and that the removal of this

cause to this Court from the Circuit Court for Harford

County, in the State of Maryland, as directed by the said

order of this Court dated February 11th, 1925, be and the

same is hereby ratified and confirmed.

The United States District Court for the District of

Maryland does further certify to the Supreme Court of the

United States that the sole issue before the said District

Court of the United States for the District of Maryland

in the said motion to quash and remand filed by the Stat

of Maryland, was the jurisdiction of the said Court to re

move this cause to said Court from the Circuit Court fo:

Harford County, in the State of Maryland, and that ix

hereby ordering said removal, the said Court does hereby

adjudicate said question of jurisdiction adversely to the

State of Maryland.

MORRIS A. SOPER,

United States District Judge.

STIPULATION.

Filed May 5, 1925.

State or Maryann IN THE

vs. District Court oF THE

Rosert D. Forp, Jonun M. Unitep States

Barton, EK. Franxurn Ety, FOR THE

Witton L. Stevens and . District or MARYLAND.

Wiruuiam TRaBING.

INDICTMENT FOR MuRDER.

It is stipulated by and between the parties hereto that

Robert D. Ford, John M. Barton, Wilton L. Stevens and

E. Franklin Ely, during the month of November, in the

year 1924, and prior to said time, and at the time of the

matters and facts charged in the indictment in the Circuit

Court for Harford County, were Federal Prohibition Offi-

cers, holding a commission under the Commissioner of In-

ternal Revenue and countersigned by the Federal Prohi-

bition Commissioner, in the form following, that is to say:

‘‘Date No.

THE UNITED STATES

TREASURY INTERNAL REVENUE

DEPARTMENT. SERVICE.

ye err ee rereeT Tee is hereby employed

as a Federal Prohibition Officer to act under the authority

of and to enforce the National Prohibition Act and Acts

supplemental thereto and all Internal Revenue Laws, re-

lating to the manufacture, sale, transportation, control, and

taxation of intoxicating liquors, and he is hereby author-

ized to execute and perform all the duties delegated to such

officers by law.

Countersigned :

Federal Prohibition Commissioner of Internal

Commissioner. Revenue.

This Commission is void if photograph of bearer does not

appear above.’’

And that William Trabing was, at the time of the acts

alleged in the indictment in the Circuit Court for Harford

County, a chauffeur of the Reliable Transfer Company,

engaged and employed by Edmund Budnitz, Federal Pro-

hibition Director of the State of Maryland, in the capacity

of chauffeur for the Prohibition Agents above named.

IN THE

Supreme Court of the United States

IN THE MATTER OF THE APPLICATION OF THE

STATE OF MARYLAND FOR A WRIT OF MAN.

DAMUS DIRECTED TO THE HONORABLE,

MORRIS A. SOPER, JUDGE OF THE DISTRICT

COURT FOR THE DISTRICT OF MARYLAND,

AND DIRECTED ALSO TO SAID DISTRICT

COURT.

CASE “A,”

EXHIBIT B.

Mr. CueRxk:

Please file.

THOS. H. ROBINSON,

Attorney General for the State

of Maryland.

HERBERT LEVY,

Asst. Attorney General of the

State of Maryland.

EXHIBIT B.

RECORD OF PROCEEDINGS OF THE CIRCUIT COURT

FOR HARFORD COUNTY, FILED IN THE DIS-

TRICT COURT OF THE UNITED STATES FOR

THE DISTRICT OF MARYLAND, FEBRUARY 21,

1925.

State oF Maryianp, Harrorp County, To wit:

At a session of the Cireuit Court of the Third Judicial

Circuit of the State of Maryland, begun and held for Har-

ford County, at the Court House in the Town of Bel Air, in

the same County, on the second Monday of February, it

being the ninth day of the same month, in the year of our

Lord one thousand nine hundred and twenty-five.

Present:

The Honorable, T. Scott Offutt, Chief Judge,

The Honorable, Frank I. Duncan, Associate Judge,

The Honorable, William H. Harlan, Associate Judge,

The Honorable, Walter W. Preston, Associate Judge,

Isaac W. Thompson, Esq., Sheriff,

D. Gilpin Wilson, Clerk.

Among others were the following proceedings, to wit:

oD fo) os?

State oF MaryLanp )

vs.

Wirton L. Stevens, Roperr

D. Foro, E. Fran kuin Exy,

Joun M. Barton, Witu1AM

TRABING.

Be it remembered, that at the present term of this Hon-

orable Court, held as aforesaid, Frederick C. Jones, A.

Lynn Baker, Wilson R. Mitchell, Isaac A. Hoffman, Harry

F. Daughton, George K. Livezey, Louis Amrein, Charles

W. Walker, William A. Bodt, Harry E. Martin, Hargraves

Spalding, T. Norman Harkins, Lawrence E. Bauer, Preston

C. Snodgrass, J. Henry Baird, Edward Breibenbaugh, Seth

B. Taylor, Harry F. Pyle, Frederick O. Veile, Samuel E.

Walker, Harry E. Sheridan, George C. Proctor and John

E. Webster, good and lawful men of the County aforesaid,

who being empannelled, sworn and charged as the Grand

Inquest of the State of Maryland for the body of Harford

County, having withdrawn from the Bar of this Honorable

Court here did afterwards return and present to this Hon-

orable Court a presentment in the words and form follow-

ing, to wit:

In tHe Crecurr Court ror Harrorp County:

February Term, 1925.

The Grand Inquest of the State of Maryland for the body

of Harford County do, on their oath present that Wilton

L. Stevens, Robert D. Ford, E. Franklin Ely, John M. Bar-

ton and William Trabing, late of Harford County afore-

said, at County aforesaid, on the nineteenth day of Novem-

ber, nineteen hundred and twenty-four, did kill and murder

Lawrence Wenger, against the peace, government and dig-

nity of the State.

FRED C. JONES, Foreman.

Witness:

Abraham Woods,

Ralph T. Woods,

James Patterson,

John H. Henson,

Dr. P. F. Sappington,

Dewey F. Bowman.

Whereupon, the State of Maryland, by W. Worthington

Hopkins, E'sq., State’s Attorney for Harford County, prose-

euted and sued forth out of this Honorable Court the Writ

of the State of Maryland of Capias ad respondendum

against the said Wilton L. Stevens, Robert D. Ford, E.

Franklin Ely, John M. Barton and William Trabing, to

the Sheriff of Harford County, in the words and form

following :

SraTeE oF Mary.anp,

To the Sheriff of Harford County—Greeting:

You are hereby commanded to take the bodies of Wilton

L. Stevens, Robert D. Ford, E. Franklin Ely, John M. Bar-

ton and William Trabing, late of Harford County, if they

shall be found in your bailiwick, and that them so taken,

you safely keep, so that you have their bodies before the

Cireuit Court for Harford County, at the Court House in

the same county at once, to answer unto the State of Mary-

land on a presentment and indictment did kill and murder

Lawrence Wenger contrary to the Act of Assembly in such

case made and provided, and against the peace, government

and dignity of the State.

Hereof fail not at your peril, and have you then and

there this Writ.

WITNESS the Honorable T. Scott Offutt, Chief

Judge of our said Court, the 9th day of Feb-

(Seal.) ruary, 1925. Issued the 10th day of Feb-

ruary, 1925.

Test: D. G. WILSON, Clerk.

Witness:

Abraham Woods,

Ralph T. Woods,

James Patterson,

Charles Cook,

John Cook (col.),

John H. Henson,

Robert Atwell,

Charles Bobbitt,

Dr. P. F. Sappington.

To which said Writ of the State of Maryland of Capias

ad respondendum (which was delivered to said Sheriff of

Harford County to be executed) there has been no Return

to this Honorable Court, and the said Wilton L. Stevens,

Robert D. Ford, FE. Franklin Ely, John M. Barton and

William Trabing, as shown by the Records of this Honor-

able Court are still at large.

And the said W. Worthington Hopkins, Esq., the State’s

Attorney for Harford County, exhibits to the Grand In-

quest of the State of Maryland, for the Body of Harford

County, an indictment against the said Wilton L. Stevens,

Robert D. Ford, E. Franklin Ely, John M. Barton and Wil-

liam Trabing in the words and form following, to wit:

Stare or Mary.anp, Harrorp County, To wir:

The Jurors of the State of Maryland, for the body of

Harford County, do on their oath present that Wilton L.

Stevens, John M. Barton, Robert D. Ford, E. Franklin Ely

and William Trabing, late of Harford County aforesaid,

on the nineteenth day of November, in the year of our Lord

nineteen hundred and twenty-four, at the County aforesaid,

feloniously, wilfully and of their deliberately premeditated

malice aforethought did kill and murder Lawrence Wenger;

contrary to the form of the Act of Assembly in such case

made and provided; and against the peace, government and

dignity of the State.

W. WORTHINGTON HOPKINS,

State’s Attorney for Harford County.

Whereupon, the said Grand Inquest of the State of Mary-

land for the Body of Harford County, returned the said

Indictment to our Honorable Court here thereon endorsed:

True Bill.

FRED C. JONES, Fvreman.”’

And afterwards, to wit, on the 12th day of February,

1925, a Petition, Affidavit and Order of Court issuing out

of the Honorable, the United States District Court for the

District of Maryland, commanding the transmission of the

Record of Proceedings in the case be sent to the Honorable,

the United States District Court for the District of Mary-

land, were received by the Clerk of the Honorable, the Cir-

euit Court of the Third Judicial Circuit of the State of

Maryland, for Harford County, under protest.

State or Maryann, Harrorp County, ro wir:

I, D. Gilpin Wilson, Clerk of the Cireuit Court for Har-

for County, the same being a Court of Law and Record,

hereby certify that the aforegoing is a true, full and com-

plete transcript of the Record of Proceedings in the there-

in entitled case, as the same remains of record in this office.

IN TESTIMONY WHEREOF I hereto sub-

scribe my name and affix the seal of the Cir-

euit Court for Harford County, this 21st day

(Seal.) of February, 1925.

D. GILPIN WILSON,

Clerk of the Cireuit Court of the Third

Judicial Circuit of the State of Mary-

land, for Harford County.

Whereupon, the Record of Proceedings is transmitted

accordingly.

D. GILPIN WILSON, Clerk.

Unirep Srates or AMERICA,

District or Maryann, to wit:

I, ARTHUR L. SPAMER, Clerk of the District Court of

the United States for the District of Maryland, do hereby

certify that the foregoing papers comprising Exhibits ‘‘A”’

and ‘‘B’’ are true copies respectively of all the original

papers filed on the respective dates set forth in the captions

thereto, in the case of the State of Maryland versus Robert

D. Ford, E. Franklin Ely, John M. Barton, Wilton L.

Stevens and William Trabing, No. 7189 Criminal, in the

District Court of the United States for the District of

Maryland; and I further certify that the Docket Entries

above set forth are truly taken from the record of proceed-

ings in said case.

IN TESTIMONY WHEREOF, I hereunto set

my hand and affix the seal of said District

Court, this 24th day of September, A. D.

1925.

ARTHUR lL. SPA MER,

Clerk.

(Seal.)

CERTIFIED COPY OF DOCKET ENTRIES—CIRCUIT

COURT FOR HARFORD COUNTY.

State or Marytanp 7

vs.

Witton L. Stevens, Rosert In tHE Crrcuir Court

D. Forp, E. Franxuin Ety, ( FOR

Joun M. Barton, WILLIAM Harrorp County.

TRABING. }

Feby. 10, 1925—Present. for Murder filed and Capias

Issd. Same day Indictment endorsed and True Bill filed.

Feby. 12, 1925—Petition and Affidavit of the District

Attorney of the United States District Court for the Dis-

trict of Maryland for Removal and Order of said Court

commanding the Record of Proceedings be sent to said

United States District Court for the District of Maryland

recorded by the Clerk of this Court under Protest and copy

of same left and filed.

State or Maryann, Harrorp County, Scr:

I hereby certify that the above is a true copy of the

Docket Entries in the above entitled case, as same remains

of record in this office.

In Testimony Whereof, I hereto subscribe my

name and affix the Seal of the Circuit Court

for Harford County, this 11th day of Septem-

ber, 1925.

D. GILPIN WILSON,

Clerk of the Circuit Court

(Seal.) for Harford County.

FiLKD

93 Ori oO. OCT 24 1925

In Tue

Supreme Court of the United States

STATE OF MARYLAND

versus

MORRIS A. SOPER, JUDGE OF THE DISTRICT

COURT OF THE UNITED STATES FOR THE

DISTRICT OF MARYLAND, AND THE DIS-

TRICT COURT OF THE UNITED STATES FOR

THE DISTRICT OF MARYLAND.

CASE “A.”

BRIEF IN SUPPORT OF PETITION FOR MAN-

DAMUS ON BEHALF OF THE STATE

OF MARYLAND.

Mr. Clerk:

Please file:

THOS. H. ROBINSON,

Attorney General of Maryland.

HERBERT LEVY,

Assistant Attorney General of Maryland.

The Daily Record Company Print, Baltimore, Md,

INDEX.

ieee PAGES

STATEMENT OF THE CASE........................ 1-4

I ready ns Diasec te bic hee 5-45

Enumeration of points discussed.............. 5-6

I. This Court is vested with jurisdiction to

entertain the petition for mandamus in this

case. Mandamus lies from this Court to

compel a Federal District Court to remand

a criminal prosecution to the State Court,

where it is apparent from the record that

the Federal Court has no jurisdiction what-

OO ED 5 i db oe sckackdaasse cn... 6-12

If. Removal acts are strictly construed. They

are not enlarged by construction.......... 12-14

III. The jurisdiction of the Federal Court under

removal acts rests and depends upon the

statements made in the petition for removal

and verified by the oath of the petitioner. . 14

IV. The scope of Section 33 of the Judicial

UR ana teventacuie sep Rc ere 14-45

A. The persons to whom it is applicable:

It is not applicable to Federal Prohi-

tion Agents, because Federal Prohi-

tion Agents, acting under the National

Prohibition Act, are not Revenue Offi-

cers, and theNational Prohibition Act

is not a Revenue Law.............. 14-21

B. The actions and prosecutions embraced

within it:

ConcLusION

Appenpix—Text of Section 33 of the Judicial Code 49-51

The removal act applies only where

the act which is the Seals of the action

or prosecution has some rational con-

nection with official duties under a

‘Revenue Law,’’ and in some way

affects the revenue of the government.

In this case the amended petition,

which sets forth in detail the facts

upon which the petitioners rely, does

not meet the jurisdictional require-

ments for the removal of the prosecu-

7 epee peor re er Ser t yr Tee

“wi ae ee eS ee Oe Oe ee ee ee ee

en ee ape ae Per)

ssn repamrecnanepcarsrees ene eitI

iii

; TABLE OF CASES.

PAGES

Alabama, State of, vs. Peak, 252 Fed. 306 (D. C. 8. D., Ala.)...... 39-42

Blake vs. McKim, 103 U. 8. 336, 26 L. ed. 563.................... 12

Bogan vs. Commonwealth of Mass., 285 Fed. 668................. 16, 44

Boston & L. R. Co. vs. Salem & L. R. Co., 21 Fed. Cases p. 228,

Fed. Cas. No. 12249

[Jawa rahPrrseadans emedenm sass ceeuakudecns 14, 34

Castle vs. Lewis, 254 Fed. 917 (C. C. A., 8th Cir.)............... 27

Commonwealth of Mass. vs. Bogan, 285 Fed. 668................ 16, 44

Commonwealth of Pa. vs. U. S., 293 Fed. 931................... . 16-17

Cunningham vs. Neagle, 135 U. 8. 1, 34 L. ed. 55, 10 8. Ct. Rep. 658 27

Davis vs. South Carolina, 107 U. S. 597, 27 L. ed. 574, 2 Sup. Ct.

Me MN 66.6 05s a pacar nsec tecdasewsseareuewceedeauess sen suc 31

Davis vs. Tennessee, 100 U. S. 257, 25 L. ed. 648............... 13, 28-31

DeHart vs. Virginia (C. C., 1902), 119 Fed. 626..... icais.atee aca 14, 34-36

Drury vs. Lewis, 200 U. 8. 1, 50 L. ed. 343, 26 S. Ct. Rep. 229.... 27

Ex parte Gruetter, 217 U. 8. 586, 54 L. ed. 892, 30 Sup. Ct. Rep. 690 7

Ex parte Hoard, 105 U. S. 578, 26 L. ed. 1176..................2.. 6

Ex parte Nebraska, 209 U. 8. 436, 52 L. ed. 876, 28 Sup. Ct. Rep. 581 6

Ex parte Park Square Automobile Station, 244 U. 8. 412, 61 L. ed.

BN et SU A REN, SR oo os as od wi Sajain sin eases abla ec badengane

Ex parte Riddle, 255 U. 8. 450, 65 L. ed. 725, 41 Sup. Ct. Rep. 370. . 7

Ex parte Roe, 234 U. 8. 70, 58 L. ed. 1217, 34 Sup. Ct. Rep. 722.. 7

Ex parte Wisner, 203 U. 8S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150... 4 7

Felts vs. Virginia, 133 Fed. 85 (C. C., W. D. Va.)................. 36-38

Fletcher vs. Illinois, 22 Fed. 776 (C. C., N. D. UL).......... 32-33, 40, 41

Gibney vs. Wolkin, 3 Fed. Rep. 2nd Series 960................... 17

Gillian vs. Smith, 282 Fed. 628.................... 16, 17, 18-21, 43-44

Goodwin vs. People’s United States Bank (C. C. E. D., Mo.), 162

ies Rd EE Ey OE OE EE OE Te A Sr eee 13, 38-39

Gruetter, ex parte, 217 U. S. 586, 54 L. ed. 892, 30 Sup. Ct. Rep. 690 7

Harding, re: 219 U. 8. 363, 55 L. ed. 252, 31 Sup. Ct. Rep. 324, 37

is es ey A crc a swnigaic saw k sand chaledwsns <esacosuee ts 7

Higgins vs. Morse, 273 Fed. 830.................. See aaneubencae 16

Higgins va. Moree, 873 Fed. S32. . oo... cccccccsccccccccecccscese 16

Hoard, ex parte, 105 U. 8. 578, 26 L. ed. 1176..................... 6

Illinois vs. Fletcher, 22 Fed. 776 (C. C., N. D. IIL).......... 32-33, 40, 41

In re: Marsh, 51 Fed. 277

PE eI sn pas or ett bon tsa oe ET .

Kentucky vs. Powers, 201 U. 8. 1, 50 L. ed. 633, 26 Sup. Ct. Rep.

387, 5 A. & E. Annotated Cases 692.......... eee eS ere 8,11

Lederer vs. Lipke, 259 U. S. 557, 66 L. ed. 1061............... 15, 16, 17

Lewis vs. Drury, 200 U. S. 1, 50 L. ed. 343, 26 S. Ct. Rep. 229..,... 27

Lipke vs Lederer, 259 U. 8. 557, 66 L. ed. 1061......... canoe 15, 16, 17

pie Be Paes 1 Oa a a 27

Massachusetts, Commonwealth of, vs. Bogan, 285 Fed. 668........ 16, 44

McKim vs. Blake, 103 3 DO, AO 8s OF SOS is icici deceives 12

MecLish vs. Roff, 141 U. S. 661, 35 L. ed. 893.............0..0000- 12

Moore, re: 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Rep. 585, 14

Bi Ge TE, DOUGIOR TOE DIG a oso sions ie acces scesecdsacecse 7

Morse va: Tiggine, B70 Fad, GIO. ooo cain s 60 ocas css ecceees ns wae 16

Morse vs. Higgins, 273 Fed. 832............. PPEre ror errr re tree a0 16

Neagle vs. Cunningham, 135 U. S. 1, 34 L. ed. 55, 10 S. Ct. Rep. 658 27

Nebraska, ex parte, 209 U. 8. 436, 52 L. ed. 876, 28 Sup. Ct. Rep. 581 6

Come We. WOR, Bee POG: OIG. oie ieee ivkaccenecdes ee 15, 42-43

Pales vs. Paolo, (C. C. A. Ist Circuit), Adv. Sheets, Fed. Rep. July

A MN cg Nat ohn a ay pn asd aKa yee Pan eEREE yo ae

Paolo vs. Pales, (C. C. A. lst Circuit), Adv. Sheets, Fed. Rep. July

Be NR Ua soi Ss ahaa s hod dew ed baie ae Kanne dress 27

Park Square Automobile Station, ex parte, 244 U. 8. 412, 61 L. ed.

1231, 37 Sup. Ct. Rep. 732......... Ee PP eS ee ree erer ti

Paul vs. Virginia, 148 U. 8. 107, 37 L. ed. 386, 13 Sup. Ct. Rep.

ON ed wie dann cass chia ceius csGatacasunmecda desea sae@ass 8,10, 11

Peak vs. State of Alabama, 252 Fed. 306 (D. C., S. D., Ala.)...... 39-42

Pennsylvania, Commonwealth of, vs. U. S., 293 Fed. 931........... 16-17

People’s United States Bank vs. Goodwin (C. C., E. D. Mo.), 162

OA, US ois cisco aie Sina alaha pla es bx ee aielavese adie claims s asia aOR bid 13, 38-39

Pollitz, re: 206 U. S. 323, 51 L. ed. 1081, 28 Sup. Ct. Rep. 729...... 6

Powers vs. Kentucky, 201 U.S. 1, 50 L. ed. 633, 26 Sup. Ct. Rep.

SBT, SB. Be Ba CO ais as aks kaieese case snasaaicccns 8,11

Re: Harding, 219 U. 8. 363, 55 L. ed. 252, 31 Sup. Ct. Rep. 324, 37

Me i a es here os KS 4s coal ce has cu cuwnicke oesslea cain 7

Re: Moore, 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Rep. 585, 14

re Ne a ee eee err errr eee ee 7

Re: Pollitz, 206 U. S. 323, 51 L. ed. 1081, 28 Sup. Ct. Rep. 729..... 6

Re: Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515...... 7

Riddle, ex parte, 255 U. 8. 450, 65 L. ed. 725, 41 Sup. Ct. Rep. 370.. 7

Rives vs. Virginia, 100 U. 8. 313, 25 L. ed. 667, 3 Am. Crim. Rep.

Wg a eae cisco cad esti ok esis 6 3 cue ne nce edie Woe usp ai tek wale 8-10, 11

Roe, ex peste, 234 U. 8. 70, 58 L. ed. 1217, 34 Sup. Ct. Rep. 722. 7

Roff vs. McLish, 141 UV. 8. 661, 35 L. ed. 893...................... 12

Salem & L. R. Co. vs. Boston & L. R. Co., 21 Fed. Cas. p. 228, Fed.

eee ie MON oo tae ok nsroac/poies sxe ele cm Wedieehe tise sek eee cours 14, 34

_—

Sanges vs. U. 8., 144 U. 8. 310, 36 L. ed. 445..................... 11,12

Sewing Mach. Co.’s Case, 18 Wall. 553, 21 L. ed. 914........ Sada 12

South Carolina vs. Davis, 107 U. 8. 597, 27 L. ed. 574, 2 Sup. Ct.

Rep. 636........ MOAASRORAES RRS He ch SES Ce whennne kee baaeen 31

Smith ve. Gillian, 282 Fed. 628...................... 16, 17, 18-21, 43-44

State of Alabama vs. Peak, 252 Fed. 306 (D. C., 8. D. Ala.)........ 39-42

Tennessee vs. Davis, 100 U. 8. 257, 25 L. ed. 648............... 13, 28-31

U. 8. vs. Commonwealth of Pa., 203 Fed. 981.................... 16-17

U. 8. vs. Sanges, 144 U. 8. 310, 36 L. ed. 445..................... 11,12

U. 8. vs. Weeden, 24 Fed. Cas. 738, Fed. Cas. No. 14412........... 27

Virginia vs. DeHart (C. C., 1902), 119 Fed. 626...... prea 14, 34-36

Virginia vs. Felts, 133 Fed. 85 (C. C., W. Py UR Ansabatdnedatia 36-38

Virginia vs. Paul, 148 U. 8. 107, 37 L. ed. 386, 13 Sup. Ct. Rep.

Virginia vs. Rives, 100 U. 8. 313, 25 L. ed. 667, 3 Am. Crim. Rep.

WORN <5 SiAR Mia ndnunhdnseeeinmbbebendbakadien ik cecs cs 8-10, 11

Weeden vs. U. 8., 24 Fed. Cas. 738, Fed. Cas. No. 14412.......... 27

Wells Fargo & Co. vs. Johnson (C. C., 1899), 98 Fed. 3............ 14

Winn, re: 213 U. 8. 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515........ ?

Wisner, ex parte, 203 U. 8. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150.. ?

Wolkin vs Gibney, 3 Fed. Rep. 2nd Series 960........... ere 17

Wood vs. Oregon, 268 Fed. 975...........0cccccecsccceccceee, 15, 42-43

STATUTES CITED.

Judicial Code:

gta OE EL OA Saale See aa SaaS Wee haemo kd 13-45, 49-51

PE ME sata daca nnehavdnddecendstncakhcescceuus eet ye 9

National Prohibition Act:

Geetion 88, Title TZ... ....ccccscccccces re eee eee 16-31

Revised Statutes:

RCM Gh hwh 6k o0sbacnabenkacadinda kuuns cuwiin coetes

UE, Snakavannacaus eer re ere

cy SESE ea Ta Nn soe een oe AS axeknes

MOSEOR FTE 6 vsiccc iccicscacs senanene eee Tere ee

U. 8. Compiled Statutes, 1916, Annotated:

Section 1011, Vol. 1, pp. 972-973.................

Section 1015, Vol. 1, pp. 1015-1026................0.0055

Section 1211, Vol. 2, pp. 1567, 1570-1579.............c.ccccccee

Section 1211, 1919 Supp., Vol. 1, pp. 214-215

I My WI MW I vk nv dc ccccadacuvcenaccceccecces

I: BN Ws Oh NI ion win id snc vncaccncedacncucces

——

State oF Mary.anp )

vs.

Morris A. Sorzr, JupcE or

THE District Court or In THE

THE Unitep States ror SUPREME COURT

THE District or Mary- OF THE

LAND, AND THE District UNITED STATES.

Court or tHE Uwnirep

SvTates ror THE District

or MaryLanp.

CASE “A”.

BRIEF IN SUPPORT OF PETITION FOR MAN.

DAMUS ON BEHALF OF THE STATE

OF MARYLAND.

Statement of the Case.

On the 10th of February, 1925, Robert D. Ford, John

M. Barton, E. Franklin Ely, Wilton L. Stevens and Wil-

liam Trabing, were indicted in the Circuit Court for

Harford County, State of Maryland, for the murder on

or about the 19th day of November, 1924, of one Law-

rence Wenger, a citizen of the State of Maryland.

On the 11th day of February, 1925, the defendants in

said indictment, through the United States Attorney for

the District of Maryland, filed a petition in the District

Court of the United States for the District of Maryland

(Morris A. Soper, Judge), for the removal of said case

from the Cireuit Court for Harford County to the said

District Court, under the provisions of Section 33 of the

Judicial Code, and for a writ of habeas corpus cum causa

for that purpose.

The petition alleged that the petitioners were, with

the exception of Trabing, Federal Prohibition Agents

of the Bureau of Internal Revenue of the Treasury De-

partment of the United States, and at the time of the

murder, were acting under and by authority of the Fed-

eral Prohibition Director of the State of Maryland, and

that Trabing was acting as chauffeur for said Federal

Prohibition agents, under and by authority of said Fed-

eral Prohibition Director of the State of Maryland, and

of the said Federal Prohibition Agents.

For convenience, however, no distinction will be here-

after made between Trabing and the others. All will be

designated and referred to as ‘‘Federal Prohibition

Agents.’’

The petition further alleged that at the time of the

murder the petitioners were in the discharge of their

official duties as Prohibition Agents in making and at-

tempting to make an investigation in the discharge of

their duty and in protecting themselves in the discharge

of their duty, but it denied they were guilty of the murder.

Upon this petition the Court passed an order removing

the case and directing the writ of habeas corpus cum

causa to issue as prayed.

The writ was served and the petitioners were admitted

to bail by the District Court of the United States for the

District of Maryland.

After the record of the proceedings of the Circuit

Court for Harford County was filed in said District

Court pursuant to said order of removal, the State of

Maryland appeared specially in said District Court and

filed a motion to quash the writ and rescind the order of

removal.

Upon a hearing of said motion, the Court ruled that

the petition for removal was defective, but granted leave

to the petitioners to amend the same.

Thereafter, the petitioners filed an amended petition

for removal. The amended petition differed from the

original in the following particulars:

(1) It alleged that the petitioners were acting under

the authority of, and enforcing not only the National

Prohibition Act and acts supplemental thereto, but all

internal revenue laws relating to the manufacture, sale,

transportation, control and taxation of intoxicating

liquors, with authority to execute and perform all the

duties delegated to such officers by law.

(2) It further alleged, in general terms, that at the

time of the murder the petitioners were engaged in their

official duties as prouibition officers in making and at-

tempting to make an investigation concerning a viola-

tion, not only of the National Prohibition Act, but of

other internal revenue laws.

(3) It set out in great detail the acts and movements

of the petitioners on the day of the murder. It set forth

that after the petitioners had completed an investigation

in Harford County, Maryland, of a violation of the

National Prohibition Law, they started to return to their

automobile for the purpose of returning to Baltimore to

report to the office of the Federal Prohibition Director

concerning the results of their investigation when they

discovered a man whom they afterwards learned to be

one Lawrence Wenger, mortally wounded and lying be-

side the path along which they were walking. They car-

ried the wounded man to their automobile and took him

to Jarrettsville, Maryland, and thence to Belair, Mary-

land, for the purpose of obtaining medical attention for

him, and finally placed the said Wenger in charge of a

doctor in Belair, who pronounced him dead. They then

removed the body to an undertaker’s establishment in

Belair. The said petition did not allege that Wenger

was involved in the violation of the National Prohibition

Law which the petitioners were investigating, or that

they were responsible, either lawfully or unlawfully, for

the death of said Wenger, or that any act performed by

them under color of their office resulted in the death of

Wenger, or that they had knowledge of the manner in

which Wenger came to his death, or that Wenger’s death

resulted from any act performed by them in their self-

protection as Federal Prohibition officers in the discharge

of their duties.

(4) The removal was sought under Section 28, Title

II of the National Prohibition Act, as well as under

Section 33 of the Judicial Code.

Upon the filing of the amended petition, the State of

Maryland again appeared specially and again moved to

‘‘quash and remand.’’ On May Sth, 1925, by order of

the District Court, this motion to ‘‘quash and remand’’

was overruled, and the original order removing the case

was ratified and confirmed.

In this proceeding, the State of Maryland asks this

Court to entertain a petition for mandamus directed to

Morris A. Soper, Judge of the District Court of the

United States for the District of Maryland, and said

District Court to compel the said Judge and said Court

to remand the said prosecution to the Circuit Court for

Harford County, Maryland.

LN ak i BES Re ES ORT ad a a a EE ee POP RITES OE at 5

ARGUMENT.

Points To Be Discussed.

This Court is vested with jurisdiction to entertain the

petition for mandamus in this case. Mandamus lies

from this Court to compel a Federal District Court to

remand a criminal prosecution to the State Court where

it is apparent from the record that the Federal Court

has no jurisdiction whatever of the case.

Il.

Removal acts are strictly construed. They are not

enlarged by construction.

ITI.

The jurisdiction of the Federal Court under removal

acts rests and depends upon the statements made in the

petition for removal and verified by the oath of the

petitioner.

IV.

The scope of Section 33 of the Judicial Code.

A. The persons to whom it is applicable.

1. It does not apply to Federal Prohibition Agents.

2. Section 28 of Title II of the National Prohibition

Act does not enlarge its Scope, so as to confer the right

of removal upon Federal Prohibition Agents.

B. The actions and prosecutions embraced within it.

1. It applies only where the act which is the basis of

the action or prosecution has some rational connection

a a -

with official duties under a ‘‘Revenue Law’’ and in some

way affects the revenue of the Government.

This Court is vested with jurisdiction to entertain the

petition for mandamus in this case. Mandamus lies

from this Court to compel a Federal District Court to

remand a criminal prosecution to the State Court where

it is apparent from the record that the Federal Court

has no jurisdiction whatever of the case.

It has been decided in a number of cases that the extra-

ordinary remedy of mandamus cannot be resorted to in

a civil proceeding to compel an inferior Federal Court

to remand a case pending therein to the State Courts,

after denial by the inferior Federal tribunal of a motion

so to remand. The basis for this rule, as stated in Re

Pollite, 206 U. S. 323, 51 L. ed. 1081, 28 Sup. Ct. Rep.

729 (page 331), is that ‘‘mandamus cannot be issued to

compel the Court below to decide a matter before it ina

particular way, or to review its judicial action had in the

exercise of legitimate jurisdiction, nor can the writ be

used to perform the office of an appeal or writ of error.”’

Ordinarily, mandamus is not to be used when another

statutory method has been provided for reviewing the

action below, or to reverse a decision of record.

It has been broadly asserted that the inferior Federal

tribunals have the power to decide whether or not they

have jurisdiction to try a civil cause properly brought

before them, and that such decisions are not open to

collateral attack.

Ex parte Hoard, 105 U. S. 578, 26 L. ed. 1176;

Re Pollitz, supra;

Ex parte Nebraska, 209 U. S. 436, 52 L. ed.

876, 28 Sup. Ct. Rep. 581;

(

ny Ex parte Gruetter, 217 U. S. 586, 54 L. ed.

892, 30 Sup. Ct. Rep. 690;

Re Harding, 219 U. S. 363, 55 L. ed. 252, 31

Sup. Ct. Rep. 324, 37 L. R. A. (N. S.) 392;

Ex parte Roe, 234 U.S. 70, 58 L. ed. 1217, 34

Sup. Ct. Rep. 722;

Ex parte Park Square Automobile Station,

244 U. S. 412, 61 L. ed. 1231, 37 Sup. Ct.

Rep. 732;

Ex parte Riddle, 255 U. S. 450, 65 L. ed. 725,

41 Sup. Ct. Rep. 370.

Until the decision in Re H arding, supra, there was an

apparent conflict between certain decided cases dealing

with the right to review by mandamus orders of inferior

Federal tribunals refusing to remand, and a long and

settled line of other cases relating to the same subject,

but in the Harding opinion, all of the cases upon the

subject are set out at length and discussed, and the Court

announced the general rule, above stated, to be applied

in civil cases. In doing so, it disapproved and qualified

the following cases:

Ex parte Wisner, 203 U. S. 449, 51 L. ed.

264, 27 Sup. Ct. Rep. 150;

Re Moore, 209 U. S. 490, 52 L. ed. 904, 28

Sup. Ct. Rep. 585, 706, 14 A. & E. Anno-

tated Cases 1164; 3

Re Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. q

Ct. Rep. 515, :

to the extent that said cases were in conflict with the

general doctrine announced in Ex parte Hoard, supra,

and the cases which have followed it:

In the Harding case an exception to the general rule

above stated, which had been recognized in several earlier

Piemre.- ete ; RNR ERG IER PROSE TOO a ONY a

cases was referred to with approval and affirmed. This

exception related to the power of this Court to utilize

the writ of mandamus to remand a criminal prosecution

‘‘which, if wrong was committed, no power otherwise to

redress than by mandamus existed’’ (page 378).

This exception has been recognized in the following

cases :

Virgima vs. Rives, 100 U. S. 313, 25 L. ed.

667, 3 Am. Crim. Rep. 524;

Virginia vs. Paul, 148 U.S. 107, 37 L. ed. 386,

13 Sup. Ct. Rep. 636;

Kentucky vs. Powers, 201 U. S. 1, 50 L. ed.

633, 26 Sup. Ct. Rep. 387, 5 A. & E. An-

notated Cases 692.

The State of Maryland, in asking this Court to enter-

tain this petition for mandamus, contends that the case

at bar falls within the exception announced in the cases

last cited. A careful examination of said cases dis-

closes their marked similarity with the instant case.

In Virginia vs. Rives, supra, a prosecution of persons

accused of murder was removed from a State Court toa

Cireuit Court of the United States. The latter Court,

moreover, under a writ of habeas corpus cum causa, took

the prisoners from the custody of the State authorities.

The Commonwealth of Virginia made application to the

Supreme Court of the United States for a rule to show

cause why the prisoners should not be returned to the

State Court for trial. On hearing, the Court took juris-

diction over the cause, issued the writ of mandamus and

directed the return of the accused.

The grounds for the assumption of jurisdiction by the

Cireuit Court, as they appear from the opinion of the

Court and the concurring opinion, may be summarized

as follows:

(1) The jurisdiction is conferred by Section 688 of the

Revised Statutes (Second Edition, 1878), pages 127-128;

Act, 24 Sept., 1789, e. 20, s. 13, v. 1, p. 80; Judicial Code,

Section 234; Act March 3, 1911, ¢. 231, s. 234; 36 St.

1156), which reads, in part, as follows:

‘‘The Supreme Court shall have power to issue

* * * writs of mandamus, in cases warranted by

the principals and usages of law, to any Courts

appointed under the authority of the United States,

or to persons holding office under the authority of

the United States, where a State * * * isa party.’’