# Prologue — Maryland v. Soper (No. 1) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0377%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 1926 - **Citation:** 270 U.S. 9 ## 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 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 we iat 24 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.’’ 25 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 26 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. 27 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. 28 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. J ——___. AMENDED PETITION. ns 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 29 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 30 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 31 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 32 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- 33 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. 34 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 35 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 36 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. 37 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 38 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 39 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. 40 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- 41 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. 42 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. 43 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 +4 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- 45 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. 47 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. 48 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.) 49 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 3 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 aa 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 7 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 ) 31 over the whole territory of the Union, acting upon the States and upon the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any authority conferred upon it by the Constitu- tion, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has commit- ted to it.’’ In Davis vs. South Carolina, 107 U. S. 597, 27 L. ed. 574, 2 Sup. Ct. Rep. 636, the facts were these: Davis was detailed to serve as one of a guard of the United States soldiers to aid the deputy marshal in making the arrest of one Hall under a warrant issued by the United States Commissioner, for violation of in- ternal revenue laws, as a distiller. For the purpose of making the arrest the house of said Hall was surrounded by the guard. Davis was stationed at the back door of the house for the purpose of guarding the same and pre- venting the escape of said Hall. Hall made his escape through a hole in the side of the house near where Davis was standing, ‘‘sprang past him, frightening his horse, and accidentally discharging his piece.’? ‘‘By the discharge of his said piece the said Hall was shot and mortally wounded, and subsequently died of said wound.’’ Davis was indicted in the State Court for murder. The case was removed to the Federal Court, upon a petition setting forth the above facts and alleging that at the time of said accident Davis was in the dis- charge of his duty, and that the shooting of Hall was purely accidental, and Davis was in no way responsible therefor. Upon appeal to this Court, the removal of the case was approved. 32 In Illinois vs. Fletcher, 22 Fed. 776 (C. C., N. D., IL), there was an indictment against deputy marshals of the United States for a murder committed at a Federal election. There was a petition to remove the case from the State Court to the Federal Court. The petition contained an averment that the indict- ment was found against the petitioners for acts done by them, if done at all, in their own necessary self defense, and while engaged in the discharge of their duties as deputy marshals of the United States. Judge Gresham said (pp. 778-779) : ‘*They did the killing or contributed to it, or they did not; and nothing short of a positive averment that they did the act for which they stand indicted, and did it in the line of their duty as deputy mar- shals of the United States, or under the color of their authority as such officers, will entitle them to a removal of the case from the State Court to this Court for trial. The mere holding of a commission as a deputy marshal of the United States at the time a party is indicted for murder, or any other offense against the laws of a State is not of itself sufficient ground for depriving the State Court of jurisdiction of the case. ‘*The petitioners state that James Smith, their co-defendant in the indictment, and also a deputy United States marshal and a number of other per- sons, incited thereto by special constables of Cook County, were engaged in a disturbance and a breach of the peace at the polls; that Smith was threatened by the special constables, and such other persons, with personal violence; that, ‘in order to quell said disturbance and protect said Smith and to preserve order at the polling place,’ they, the petitioners, took Smith into custody; that while proceeding with him to the office of Philip Hoyne, a Commissioner of the United States, there to make complaint EN NEC 33 against him ‘for disturbing the peace at said polling place’, they were fired upon by a large body of armed men including Curnan, the deceased, who de- manded that Smith should be taken to the Harri- son Street Police Station in the City of Chicago, and threatened both them and Smith unless he was taken there; and that, refusing to comply with this demand, they were fired upon, and some one of the attacking party, shot and killed Curnan. It is not claimed by the District Attorney, who appears for the petitioners that Smith was in the line of his duty as a deputy marshal when he was engaged in a breach of the peace at the polls, or that he had com- mitted an offense against the United States for which Commissioner Hoyne might have held him for trial or for which any Court of the United States had jurisdiction to try and punish him. Instead of doing his duty as a deputy marshal, Smith was en- gaged in a disturbance and breach of the peace at the polls. The petitioners had a right to arrest him for this offense, and in a reasonable time, turn him over to the proper State authorities. He was sim- ply a law breaker and the fact that he was a deputy marshal of the United States entitled him to no more consideration or protection than others en- gaged in the same disturbance and breach of the peace. The District Attorney admits that there is no Federal statute making a disturbance at the polls amounting to a breach of the peace an offense against the United States. This is not a case in which deputy marshals of the United States in re- pelling force by force in defense of themselves or their prisoner shot and killed an assailant. Smith had violated the laws of the State and the petition- ers refused to turn him over te the State authorities. They held him, it may fairly be inferred, to protect him because he was a deputy United States Mar- shal, and to take him before Commissioner Hoyne, who had no jurisdiction to hear a complaint against him or to detain him.” (Italics ours. ) 34 . In Salem & L. R. Co. vs. Boston &: L. R. Co., 21 Fed. Cases, p. 228, Feceral Case No. 12249, it was held that an application for a writ of certiorari to remove a case from a State Court to the Circuit Court of the United States, under the Act of Congress of March 2, 1883 (4 St. 632), must state facts sufficient to enable the Court to decide whether the case is one within the provisions of the Act. It is not enough that the petitioner alleges in general terms that he intends to rely in his defense to the suit upon revenue laws of the United States. A just interpretation of the Act does not authorize a writ of certiorari upon a statement of the mere opinion of the petitioner and his counsel that the act was done under color of the office of an agent under the revenue laws of the United States. Facts, not mere opinions or conclusions of law, should be set forth, so that it may appear whether in judgment of law such a case exists as enables the petitioner to call for removal. Virginia vs. Dehart, 119 Fed. 626 (C.C., W. D., Va.): Criminal prosecution removed from State Court. Mo- tion to remand. Denied. Ground of motion that petition did not allege a state of facts necessary to give the Court jurisdiction. Petition alleged that petitioner, while acting as a posseman under a deputy collector of internal revenue, had assisted in destroying an illicit distillery belonging to one N. K. Thomas; that he appeared as a witness and had testified against Thomas at the preliminary hearing, and was recognized as a government witness to appear and testify against Thomas at the next term of the Fed- eral Court. At this juncture—between the examining 35 trial and the term of court at which Thomas was to be tried for operating an illicit distillery—the petitioner was summoned by a deputy United States Marshal to assist in an effort to arrest one Agee for a violation of the Federal Revenue Law. ‘“‘While in the discharge of such duty, and while acting under and by authority of said officer, your petitioner was set upon by said N. K. Thomas, who told your petitioner that, on account of his having reported said Thomas’ still to the said Government officers and on account of his having, while acting under and by authority of a deputy collector of the United States, assisted in the cutting up and de- struction of said Thomas’ still, and on account of the evidence given by your petitioner against him before the Commissioner and to prevent such evi- dence being repeated by your petitioner at the No- vember Term of said District Court, he intended to kill your petitioner. As he said this, said N. K. Thomas thrust his hand in his pocket and drew therefrom a pistol. Your petitioner, acting in the capacity of a Government officer, also had on his person a pistol, which he drew from his pocket, and, without attempting to fire on the said N. K. Thomas, struck him in self defense, and thereby prevented the said N. K. Thomas from carrying out the threats made not only at that time, but on previous occa- sions.’’ It was held that a person acting under a deputy marshal while executing, or on the way to execute, a war- rant for the arrest of one charged with a violation of an internal revenue statute, is ‘‘an officer acting by author- ity of a revenue law,’’ if the prosecution is on account of an act done under color of office or of any revenue law or if the prosecution is on account of any right or authority claimed under any revenue law; that the mere fact that the assault made by Thomas on the petitioner grew out of the prior actions of the petitioner while acting under 36 the deputy revenue collector would not make it one done under color of office or of any revenue law; also, where the officer is not engaged in any official duty, and is attacked because of some act previously done by him in the performance of his official duty, he would not be act- ing under color of his office or of any revenue law. In both of the above cases he would be merely exercising the right of self-defense. However, where as in this case an attack is made on a revenue officer while he is in actual pursuit of a violator of the revenue laws, by a third party actuated by mere personal malice toward the officer, and the officer, in re- pelling the attack wounds or kills the person attacking him, such act is one done, at least colorably in the line of official duty, nor can a distinction be properly drawn, if instead of being in actual pursuit, the officer is merely on the way to make an arrest, or merely seeking an of- fender with intent to arrest him when found. Virginia vs. Felts, 133 Fed. 85 (C. C., W. D., Va.): The petitioner, a deputy United States Marshal, was indicted in the State Court for murdering one Vaughn and wounding with intent to kill one Alford. Petition for removal. Motion to remand. Denied. The petition alleges that Felts was on a train, in the course of his official duties, on his way to serve warrants upon two persons charged with violations against Fed- eral statutes. On the train he met Vaughn and Alford who, on account of previous acts of the petitioner in con- nection with his duties as deputy marshal, had conspired to murder said petitioner. Vaughn and Alford viciously attacked him, and in defending himself against the said assault he found it 37 necessary to shoot and kill the said Vaughn and wound the said Alford. It is further stated that ‘‘in conse- quence of said assault and interference on the part of the said Vaughn and Alford, he was hindered and pre- vented from discharging his duty as such officer as re- quired by the process aforesaid.”? In discussing the manner of contesting the jurisdiction of the Court in such cases, the Court said (p. 89): ‘‘Where an objection to the jurisdiction of the Federal Court appears on the face of the removal papers, the point is raised by a motion to remand. But when the party resisting the removal desires to contest the truth of some essential jurisdictional fact,’’ set forth in the petition, this issue may be de- termined preliminary to the hearing of the case on the merits. (p. 90): ‘*While a plea to the jurisdiction is not necessary (where a jurisdictional fact in the petition for removal is denied), for the Court will sua sponte remand the case if, after the evidence is in, it appears that it has not jurisdiction, yet the better practice is to file such a plea. **Such a plea, with replication, raises an issue of fact.’’ This should be submitted to the jury, subject to the right of the Court to direct a verdict on this issue when proper. (p. 91): ‘Ordinarily, in Courts of general juris- diction pleas in abatement are not favored and must be filed at an early stage in the proceedings. The Fed- eral Courts are, in some sense of limited jurisdiction, and will remand a removed cause at any stage of the case if it appears that the Court has not juris- diction. It follows that the ordinary technical Wie 38 rules as to the time of filing the pleas in abatement do not apply in removal cases. If offered too late to have the issue tried by the jury, the effect can be obtained by a motion to remand which the Court can pass upon after hearing the evidence.’’ ‘“‘On the issue raised by the plea to the jurisdic- tion the burden of proof is on the petitioner. ’’ People’s U. S. Bank vs. Goodwin, 162 Fed. 937 (C. C., E. D., Mo.) : This action was instituted in a State Court to recover damages for an alleged libel charged to have been wrong- fully and maliciously written, composed and published by the defendants, an Assistant Attorney General for the Post Office Department and an inspector of such depart- ment. The libel was based on the promulgation by them of a fraud order against the plaintiff. It was sought to remove the case to the Federal Court by certiorari under Section 33 of the Judicial Code. The Court, in holding that the action was not removable, said (p. 945): “In my opinion, to permit the removal of the cause under this section of the law, the acts which constitute the cause of action must have some ra- tional connection with official duties ‘under a reve- nue law,’ and in some way affect the revenue of the Government. It could hardly be claimed that * * * a revenue collector, if sued for some act claimed to have been committed, in the performance of his official duties, would have the right to remove the cause under Section 643 (R. S.) if neither the declaration nor the petition for certiorari showed that the act for which he was sued was in fact in the performance of an official duty imposed on him by law, having some relation to ‘the collection of revenue for the Government. These facts must ap- pear on the face of the complaint in the action or in the petition for the writ of certiorari, otherwise a Na- tional Court is without jurisdiction. (Citing Vir- RARE A EOI, ULE AIE 39 gia vs. Rives and Virginia vs. Paul, supra). To merely state the opnion of the petitioner or his counsel that such a question is involved is insuf. ficient to justify the granting of the writ.’’ State of Alabama vs. Peak, 252 Fed. 306 (D. C., S. D., Ala.) : Peak was indicted in the Alabama State Court for grand larceny and the cause was removed to the Fed- eral Court on petition under Section 33 of the Judicial Code. A motion to remand was denied. The petitioner in this case denied in his petition that the larceny was committed; and alleged that at the time of the alleged act for which he was indicted, he was an officer duly appointed under and acting by authority of, a revenue law of the United States, that is to say, he was a narcotic inspector duly appointed and acting under the Harrison Narcotic Act, which is an internal revenue law; that he was assigned as such inspector in charge of the States of Tennessee and Alabama; that he was in Mobile, Alabama, and surrounding territory, acting under orders for the purpose of investigating violations of the said Act, as well as other internal revenue laws, including the laws in reference to vinous, spirituous or malt liquors; that he was investigating violations of the internal revenue laws about seven or eight miles from Mobile, Alabama, and was on his way back to Mobile to report the same to his superior officer, when the alleged act for which he was indicted occurred; that is to say, on his return journey he encountered one J ames W. Len- ford, who was in an automobile with his chauffeur and others; that said Lenford afterwards claimed that he had been robbed of some money while on said journey and when he reached Mobile had warrants issued for the petitioner and two chauffeurs, but petitioner denies that 40 he was guilty, on that or any other occasion of any act of grand larceny, of Lenford’s or anyone else’s money, but that the whole course of his conduct and acts on said occasion was in the performance of his official duty as aforesaid. The removal was contested upon the ground that the petitioner alleged that he ‘‘did not feloniously take and carry away said sum of money or any other sum,’’ and further denied that he was ‘‘ guilty of any act of grand larceny or the felonious taking of Lenford’s or anyone else’s money.’’ It was contended that under the ruling in Illinois vs. Fletcher, supra, the case must be re- manded. But the Court said (pp. 307-308) : ‘*Tn the first place, it occurs to me that the State’s Attorney overlooked a distinction between the de- nial of an act and a denial of the criminality of such act; in other words, that where a petitioner denies that he was guilty of grand larceny, or the felonious taking of money, this is merely a denial that the act as done was a criminal one, and distinctly consti- tuted a denial that the taking was a felonious one, in that there was no felonious intent in the taking. If the petitioner was required to specifically admit the facts as charged in the indictment, and the in- tent also charged, this would amount to a plea of guilty, and there would be nothing to try in the Fed- eral Court. All that would be required would be to enter judgment.’’ The Court then holds (contrary to the weight of au- thority, we believe) that it is unnecessary for the petition to set out the facts which it is averred constituted the acts for which the petitioner was indicted, but it was also held that if the facts are set out they should be sufficient to establish the right of removal claimed by the petitioner. 41 The Court makes this distinction between the case be- fore it from Illinois vs. Fletcher: In Illinois vs. Fletcher the facts constituting the act upon which the indictment was based were set out in the petition; in the Peak case the petition does not under- take to set out the facts which transpired at the time the petitioner was accused in the indictment of taking Len- ford’s money. The Court sustained the petition upon the ground that it set up in general terms that the whole course of the petitioner’s conduct and acts on said occa- sion was a performance of his official duties as a revenue officer. In the course of the opinion, the Court stated the proposition upon which we rely in this case, in the fol- lowing language (p. 309): ‘“‘Certainly the officer must admit the doing of some act under color of his office or of the law for which he is indicted but he is not required to admit the doing of the act as charged in the indictment.”’ (Italics ours.) It is respectfully submitted that the Peak opinion is unsound because it is based upon the erroneous assump- tion that the petition need not set forth affirmatively facts which it is averred constitute the acts upon which the indictment is based. But, assuming the facts to have been stated, it is clear that this case is in accord with the other decisions upon the same subject. It requires, as a condition precedent for removal, the admission by the officer that the indictment arose out of some act done by him under color of his office, or under color of the revenue law, although the criminality of the act or the accuracy or correctness of the statement thereof in the indictment may be denied. In other words, there must be a ‘‘confession and avoidance.’’ 42 That this is the basis for the decision is borne out by the following language (p. 311): ‘It is urged that there can be no right of removal where one is charged with a larceny, because there could be no possible connection between the official capacity of a revenue officer and the felonious tak- ing of money or property. This proposition is so manifestly unsound that I think it needs but one statement to refute it. Suppose a revenue officer finding money or property in the possession of a man he was pursuing or seeking to make a ease against, and he abstracts this money or property to be used as evidence in a prosecution against the person in whose possession it was found. Unex- plained, the taking and carrying away by the of. ficer of the money would constitute larceny, but, when it was shown that it was taken and carried away for the purpose of being preserved and used in the prosecution of such person, there would be no criminality in the act.’’ Oregon vs. Wood, 268 Fed. 975 (D. C., Oregon) : This case holds that it is not enough that the petition for removal, under Section 33 of the Judicial Code, al- leges, in general terms, that the petitioner intends to rely in his defense to the prosecution upon the revenue laws of the United States. ‘‘The statute requires that the petition shall set forth the nature of the action or prosecution’’ (p. 978). The petition averred (1) that the petitioners were officers appointed under the revenue laws of the United States, by the Commissioner of Internal Revenue; (2) that prosecution was commenced in the State Court against the petitioners and others, wherein the grand jury of such court indicted the petitioners for involun- tary manslaughter and charged that petitioners, while in the performance of a lawful act, killed one Hedderly 43 by shooting him, which indictment is still pending, no trial having been had; (3) that petitioners did not kill Hedderly; (4) that at the time of the occurrence of the act for which petitioners were indicted they ‘‘were and still are officers of the United States as aforesaid”’ and were acting as such officers and under color of their office, to wit: attempting to effect the arrest of Hedderly ; (5) that petitioners believe Hedderly was in the act of violating the revenue and prohibition laws of the United States, and for that reason the arrest was attempted; (6) that such attempted arrest was the same act as re- ferred to in the indictment as the performance by peti- tioners of their lawful act. It was held that it was not necessary that the officers state more fully the capacity in which they were acting or why petitioners attempted to make the arrest or what revenue laws they were acting under or that such laws were still in force, or what particular acts Hedderly was engaged in at the time. Smith vs. Gillian, 282 Fed. 628 (D. C., W. D., Ky.): In this case a civil action was sought to be removed under the provisions of Section 33 of the Judicial Code. The petition stated that the petitioners on a date stated, under orders of the Federal Prohibition Director for the State of Kentucky, proceeded to Nelson County, Ken- tucky, where they were engaged in the performance of their official duties in an effort to suppress the violation of liquor laws and to arrest those guilty of such viola- tions ; that while so engaged in the performance of their official duties in close proximity to where a moonshine distillery was located they and other officers associated with them on that occasion were fired upon by the men who were engaged in the violation of the Prohibition Act and certain sections of the Revised Statutes of the United 44 States ‘‘in the Setting up and operation of the distil- lery’’; that in order to protect themselves from an at- tack by those persons after they had been fired upon as stated, ‘‘certain of the officers named’? returned the fire; and that in the exchange of shots it was afterwards learned that Francis Marion Smith, husband of the plain- tiff, Lucey Smith, and the father of her co-plaintaiffs, was shot and killed. The Court said (p. 635) : “It may, at the outset, be most suggestive and important to note that neither in the original peti- tion of the defendants nor in the statement filed later was it, in any affirmative way stated or adequate- ly shown that the presumptively innocent Francis Marion Smith was himself to any extent ‘engaged’ either in the ‘manufacture or sale of intoxicating liquor,’ within the meaning of that phrase as used in Section 28, of the National Prohibition Act. Fur- thermore it is most important to note that no case to which that phrase is not applicable can by any means be brought within Section 28 of the Act.’’ The case was remanded upon the ground that under the removal statute, the right to remove is not conferred upon Federal Prohibition Officers. Commonwealth of Massachusetts vs. Bogan, 285 Fed. 668 (D. C., Mass.) : The petition for removal in this case alleged that the petitioner, while he was engaged in the performance of his duty, was attacked by one Sequeria and shot him fatally in self-defense. A prosecution, based upon this act of self-defense, pending in the State Court, was ordered to be removed by the District Court. It will be observed that in every one of the cases cited the petitioner alleged, either expressly or by the clearest 45 inference, some act done by him under color of his office or under color of some revenue law which resulted in the prosecution. In other words, in every case, there was either a con- fession of the act charged in the indictment and the denial of its criminality, or the setting up of some independent overt act alleged to constitute the act under color of office for which the petitioner was indicted. It is respectfully submitted: THAT THE REMOVAL ACT APPLIES ONLY WHERE THE ACT WHICH IS THE BASIS OF THE ACTION OR PROSECUTION HAS SOME RATION. AL CONNECTION WITH OFFICIAL DUTIES UNDER A ‘“‘REVENUE LAW,”’ AND IN SOME WAY AFFECTS THE REVENUE OF THE GOVERN. MENT, AND THAT IN THIS CASE THE AMENDED PETITION WHICH SETS FORTH IN DETAIL THE FACTS UPON WHICH THE PETITIONERS RELY, DOES NOT MEET THE JURISDICTIONAL RE. QUIREMENTS FOR THE REMOVAL OF THE PROSECUTION, EVEN THOUGH THIS COURT MAY BE OF THE OPINION THAT IN A PROPER CASE THE REMOVAL ACTS ARE APPLICABLE TO OFFICERS SUCH AS THOSE DESCRIBED IN THE PETITIONS FOR REMOVAL FILED IN THIS CASE. CONCLUSION. It has been the universal practice (probably under the authority of the Rev. St. Sec. 771; U.S. Comp. St. 1916, Vol. 2, Sec. 1296, p. 2156), for the United States District Attorney to appear in the Federal Court on behalf of revenue officers in all prosecutions against them removed el ns Se 46 from the State Courts. The United States District At- torney, who daily appears before the petit juries in the District Court as the prosecuting officer, in these special eases changes his role from prosecutor to defense coun- sel, and urges the acquittal of defendants, accused of serious crimes against the sovoreignty of the State gov- ernment. Certainly, this change of front upon the part of the District Attorney must have its effect upon the jury. The jurymen, who have probably learned to trust and respect the District Attorney, undoubtedly will give more credence to what he says in defense of the accused, espe- cially when his usual and customary plea is for convic- tion. If he asks in some special case for an acquittal, there must indeed be some special circumstances to justify such action upon his part. In removed criminal prosecutions even the Federal Judge, who hears the case and determines the punish- ment if there is a conviction, is expected to lean more favorably toward the accused than in the ordinary crim- inal case coming before him. And this should be so, because the very purpose of the removal statute is to afford protection to those officers embraced within it in the performance of their official acts. There is, and ought to be a strong presumption that any act done in the course of official duties is within the scope of the officer’s authority under the law. Thus in the trial of removed prosecutions in the Fed- eral Court, the atmosphere is surcharged with kindli- ness, leniency and protection to the accused. It is, therefore, meet that the right of removal be strictly limited to those cases in which the accused is entitled to the benefit of such pre-disposition toward a8 £ oy 47 him, that is to Say, to cases where the prosecution has arisen out of an act done under the semblance, at least, of the authority conferred upon the officer by the law. The removal statute aims to protect officers who have, in good faith, attempted to enforce at least what they consider to be their duty under the law, and not to pro- tect them in acts committed by them in their private capacity, having no rational connection with their duties. The protection of the removal act has its historical inception in the effort of a State to nullify revenue laws of the Government, and this historical purpose should always be borne in mind in the application of said statute by the Courts. Is the action of the State authorities in commencing 4 prosecution calculated to embarrass the Federal Gov- ernment in the execution of its revenue laws? That is the test to be applied in every case in which removal of a prosecution is attempted. We respectfully submit that in the case at bar the defendants in the indictment in the State Court have not shown that they are revenue officers within the meaning of the removal statute, nor have they shown by their petition that the prosecution which they seek to remove is embraced within the terms of said Act. Judge Soper and the District Court, in removing this prosecution from the State Court have clearly exceeded the authority vested in them under the Act. Under the precedents in this Court, hereinbefore cited, this Court is vested with jurisdiction to compel the remand of the 48 prosecution to the State Court, and we respectfully and earnestly request that this be done. Respectfully submitted, THOS. H. ROBINSON, Attorney General, HERBERT LEVY, Assistant Attorney General, Attorneys for the State of Maryland, Petitioner. one figs 49 a APPENDIX. -—_ SECTION 33, JUDICIAL CODE, R. S. SEC. 643; ACT, MARCH 3, 1875, C. 130, SEC. 8, 18 STAT. 401, ACT, FEBRUARY 8, 1894, C. 25, SEC. 1, 28 STAT. 36, ACT, MARCH 3, 1911, C. 231, SEC. 33, 36 STAT. 1097. ACT, AUGUST 23, 1916, C. 399, 39 STAT.. ‘“When any civil suit or criminal prosecution is com- menced in any court of a State against any officer ap- pointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such | officer, on account of any act done under color of his office : or of such law, or on f any right, title, or | authority claimed by such officer or other person under | any.such law, jor is commenced against any person hold- — ing property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal] prosecution is com- menced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit and, to- gether with a certificate signed by an attorney or coun- selor at law of some court of record of the State where 00 such suit or prosecution is commenced or of the United States stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully in- quired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the Same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, sub- poena, petition, or any other process except capias, the clerk of the district court shall issue a writ of certiorari to the State court requiring it to send to the district court the record and the proceedings in the cause. When it is commenced by capias or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a dupli- cate of which shall be delivered to the clerk of the State court or left at his office by the marshal of the district or his deputy or by some other person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be re- moved to the district court and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district Court, or, in vacation, of any judge 51 thereof; and if, upon the removal of such suit or prose- cution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to pro- ceed, judgment of non prosequitur may be rendered against him, with costs for the defendant.” ne Office Suprame @ourt, FILED NOV 23 192 NO. 23, ORIGINAL. WM. R. STANS2 | © 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 sine Ti REPLICATION. Mr. Cuerx: Please file. THOMAS H. ROBINSON, Attorney General of Maryland HERBERT LEVY, Assistant Attorney General of Maryland, Attorneys for the State of Maryland. , The Daily Record Co. Print, Baltimore, Md. In THE Supreme Court of the United States Ocroser Term, 1925, No. 23, Ortcinat.. STATE OF MARYLAND versus MORRIS A. SOPER, JUDGE OF THE DISTRICT COURT OF THE UNITED STATES FOR Tlik DISTRICT OF MARYLAND, AND THE DIS TRICT COURT OF THE UNITED STATES FoR THE DISTRICT OF MARYLAND. CASE ‘‘A.”’ REPLICATION. And the said State of Mary! and things set forth and alleged in the answer and return of the said Morris A. Soper, Judge of the Dis- trict Court of the United States for the District of Mary- land, and of the District Court of the United States for the District of Maryland, to the rule on them laid by this Honorable Court to show eause Why a writ of mand should not issue in accord and says that the matters Us ance with the prayer of the petition of the said State of Maryland, SHOW No CAUSE why the writ of mandamus should not be issued by this Court, forbidding and preventing the said Morris A. Soper, Judge of the Distriet Court of the United States for the District of Maryland and the said District Court, from taking cognizance of the case « ntitled ‘‘State of Maryland vs. Robert D. Ford, John M. Barton, E. Fraaklia Ely, Wilton L. Stevens and William Trabing,”’ and from any, all and every act connected with the trial of said case, and commanding them to remand the said ease to the Cireuit Court for Harford County, and to redeliver to the jailor for said Harford County, the bodies of the said Robert D. Ford, John M. Barton, F. Franklin Ely, Wilton L. Stevens and William Trabing, to be dealt with according to the laws of said State. WHEREFORE, the said State of Maryland prays this Honorable Court to issue its writ of mandamus to the said Morris A. Soper, District Judge, as aforesaid, and to the said Distriet Court, commanding them to do so. THOMAS H. ROBINSON, Attorney General of Maryland, HERBERT LEVY, Assistant Attorney General of Maryland, Attorneys for the State of Maryland. nthe Supreme Court of the United States OcToBER TERM, 1925 No. 23, ORIGINAL Ex Parte: IN THE MATTER OF THE STATE OF MARYLAND Case “A’’ PETITION FOR A WRIT OF MANDAMUS TO THE DISTRICT COURT FOR THE DISTRICT OF MARYLAND RETURN TO RULE The answer and return of Morris A. Soper, Judge of the District Court of the United States for the District of Maryland, and of the District Court of the United States for the District of Maryland, to the rule on them laid by this Hon- orable Court to show cause why a writ of man- damus should not issue in accordance with the prayer of the petition. The respondents, answering, say: (1) All the acts of which petitioner complains were the acts of the respondent, the District Court of the United States for the District of Maryland. 69771— 25 2 Of this Court the respondent, Morris A. Soper, at all times herein material, was, and still is, the duly appointed judge. (2) On February 11th, 1925, a ilihli was pre- sented to the said District Court by Robert D. Ford, John M. Barton, E. Frank Ely, Wilton L. Stevens, and William Trabing. In it the petition- ers set forth that they had been indicted, on Feb- ruary 10th, 1925, in the Crimina] Court of the State of Maryland for Harford County, for the murder of one Lawrence Wenger; that the petitioner Trabing was a chauffeur engaged and employed by the Federal Prohibition Director of the State of Maryland, and that the other four petitioners were officers of the Internal Revenue Service of the United States; that the acts done by Trabing at ixGie of tho alleged murder were done while he was acting under the authority of the Prohibi- tion Director and of the other four petitioners and in discharge of his duty as a helper to the other petitioners; that the acts done by the other four petitioners were done in the discharge of their offi- cial duties, and that the prosecution in the State Court was on account of acts alleged to have been done in the course of the performance of the peti- tioners’ duty as Federal Prohibition Agents. The petitioners prayed that the prosecution be removed to the District Court of the United States, under Section 33 of the Judicial Code. The contents of this petition are set forth in Exhibit A to the peti- ae 3 tion of the State of Maryland for a writ of man- damus, at pages 18-21. (3) Upon consideration of this petition, it was ordered by the District Court that writs of certiorari and habeas corpus cum causa should issue to remove the prosecution from the State Court. In obedience to these writs, the record in the State Court was, on February 21st, 1925, trans- mitted under protest to the District Court; and the petitioners were admitted to bail by the District | (4) On March 12th, 1925, the State of Mary- land, appearing specially in the District Court, moved to quash the writ and rescind the order of removal, and moved also to remand the cause to the State Court, for reasons set forth in the mo- tion. This motion is fully set forth in Exhibit A to the petition of the State of Maryland for a writ of mandamus, at pages 25-26. (5) After hearing full argument upon this mo- tion, the District Court, on March 17th, 1925, granted leave to the United States, on behalf of the accused, to amend the petition for removal. (6) On March 31st, 1925, pursuant to the leave granted, an amended petition for removal was filed. This petition set forth in full all the attendant circumstances and details surrounding the alleged murder for which the petitioners were indicted. The amended petition recited these facts: On No- vember 19th, 1924, the petitioners had proceeded, under orders, to discover and destroy an illicit still i oenentell a # a ab . a “r Bs 4 bs f . By. Se ey By at . ee Les, ‘ ik Ba “3 q * Bal ea te ee ioe as ¢ 4 ¥ Sa Rink oe es % “ Ge Es 4 in the woods near the village of Madonna, Mary- land. After destroying this still, the petitioners star ted to return to their car, when — found the sen a some 400 or 500 ea from the sit a a the still. They took him in their car and en- deavored to obtain medical aid. At length they found a physician, who pronounced Wenger dead. The petitioners then reported the affair to the State’s Attorney, who forthwith had them arrested. They spent that night in jail. The next day they repeated their account to the State officials and to the Coroner’s Jury. In the evening they were released on bail. Their indictment, set forth at length in the petition, followed later. The peti- tion concluded by stating: The said indictment is now pending in the Cireuit Court for Harford County and is a criminal prosecution on account of acts alleged to have been done by your petitioners at a time when they were engaged in the De emaee oh thc. duties. as edexal Lrg. hibition Officers and chauffeur for Federal Prohibition cers as set forth in afore- going paragraphs. Removal of the prosecution was again prayed, under Section 33 of the Judicial Code. The con- tents of this petition are fully set forth in Exhibit A ‘to the petition of the State of Maryland for a writ of mandamus, at pages 28-34. (7) Upon consideration of this amended _peti- tion, it was again ordered by the District Court 4) that writs of certiorari_and habeas corpus cum causa should issue to remove the prosecution from _ the State Court. free (8) On April 11, 1925, the State of Maryland, again appearing specially, moved to quash the writ and rescind the order of removal, and moved also to remand the cause to the State Court. The rea- sons set forth in support of this motion were: (1) Because the allegations of the second paragraph of the amended petition are un- true, pa isi ~ (2) Because the allegations of the peti- tion 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 at- tached certificate of counsel is beyond 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 administra- tion of justice in the Circuit Court for Har- ford 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 Cireuit Court for Harford County. 6 (7) And for other good and sufficient rea- sons to be shown at the hearing. The motion is set forth in full in Exhibit A to the petition of the State of Maryland for a writ of mandamus, at pages 36-37. (9) On May 5th, 1925, after hearing full argu- ment, the District Court overruled the motion of the State of Maryland and ratified its former order of February 11th, 1925, removing-the prosecution from the State Court. (10) In ordering the removal of the prosecu- tion, and in denying the motion to remand, the Dis- trict Court was of the opinion that the petitioners were entitled to removal under that portion of Sec- tion 33 of the Judicial Code, which authorizes re- moval— when any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by au- thority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law. And the District Court was further of the opin- ion that the petitioners were entitled to removal, even in the event that they were not ‘‘ revenue offi- 7 eers,’’ by virtue of Section 28 of the National Pro- hibition Act (Act of Oct. 28, 1919, @ 85, 41 Stat. 305, 316), which provides: The commissioner, his assistants, agents, and inspectors, and all other officers of the United States, whose duty it is to enforee criminal laws, shall have all the power and protection in the enforcement of this Act or any provisions thereof which is conferred by law for the enforcement of existing laws re- lating to the manufacture or sale of intoxi- cating liquors under the law of the United States. (11) The District Court was further of the opinion that the petitioners, at the time of the acts which gave rise to this indictment, were acting in the performance of their official duties in the en- forcement of the National Prohibition Act and of other laws of the United States relating to the manufacture of intoxicating liquors (particularly Revised Statutes 3257-3260, 3276, 3278, 3281, and 3282). (12) The District Court was further of the opin- ion that the facts set forth in the amended petition clearly disclosed that a prosecution had been com- menced against the petitioners on account of acts done under color of their office and of the revenue and prohibition laws of the United States, notwith- standing that the petitioners did not admit having caused the death of Wenger. 8 (13) The District Court therefore adjudged that, under the facts of the case, it possessed ample jurisdiction to order the removal of the prosecu- tion from the State Court and ample jurisdiction to proceed with the trial of the cause, which it in- tends to do. (14) The respondents assert that upon the record established by the amended petition for removal and by the motion of the State of Maryland to remand the District Court had lawful jurisdiction to order the removal of the prosecution. In de- ciding upon the questions of law and fact raised by the amended petition for removal the District Court acted in the exercise of its judicial discre- tion and within the bounds of its lawful jurisdic- tion. And the respondents deny that the action of the District Court was a gross violation of the Constitution and laws of the United States or of the Constitution and laws of the State of Mary- land. And the respondents deny that the District Court has either transcended its jurisdiction or usurped the jurisdiction of the State of Maryland. And now these respondents, having made return to and fully answered the rule upon them laid, humbly pray that the rule may be discharged and that the petition of the State of Maryland may be dismissed. Nevertheless, the respondents respectfully sub- mit to and will abide the judgment of this Honor- able Court and will enforce, by proper orders or eae See NT Re er ee ee ee DRS ctw ease AL Tas aR Oa ee - is BRAS Cor HR RTS 9 action, any direction given by this Honorable Court in the premises, Morris A. Soper, Judge of the District Court of the United States for the District of Maryland. WILLIAM D. MITCHELL, Solicitor General. WILLIAM J. Donovan, Assistant to the Attorney General, Counsel for the Respondents. Unitep States or AMERICA, District of Maryland, ss: Before me, Arthur L. Spamer, Clerk of the Dis- trict Court of the United States for the District of Maryland, personally appeared on this day Morris A. Soper, Judge of the said Court, whose name is signed to the foregoing answer and return, who, being duly sworn by me, says that the same is true to the best of his knowledge, information, and belief. Given under my hand and the seal of the said Court, this 13th day of November, 1925. [SEAL. ] Artur L. SpaMer, Clerk of the District Court of the United States For the District of Maryland. (11) 0 YO eee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0377%3A0. Public record. Not legal advice.