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[Cite as Logan v. United States, 144 U.S. 263 (1892). NOTE: This case concerns conspiracy to deny prisoners protection when in custody, and whether there was federal jurisdiction under the Fourteenth Amendment to enforce the prisoners' rights. The lower court charged the jury that when in custody a "citizen has a right ... to be protected against all unlawful violence, while he is deprived of the ordinary means of defending himself." (P. 275) This was upheld. (P. 295) Referring to the Second Amendment right to arms in similar terms as the First Amendment right to assembly, the Court comments on the Cruikshank held the First Amendment "recognized that right as already existing, and did not guaranty its continuance except as against acts of Congress; and therefore the general right was not a right secured by the Constitution of the United States." ... "It was held that the Second Amendment of the Constitution, declaring that 'the right of the people to keep and bear arms shall not be infringed,' was equally limited in its scope." (P. 286-287) See also United States v. Cruikshank, 92 U.S. 542, 552-553. The Court also relies upon the Circuit Court decision of Cruikshank as "clearly summing up" "the main principles on which that decision was based." (P. 288-289) See also United States v. Cruikshank, 25 F. Cas. 707 (1 Woods, 308).]

LOGAN v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 1235. Argued January 26, 27, 1892.--Decided April 4, 1892.

A citizen of the United States, in the custody of a United States marshal under a lawful commitment to answer for an offence against the United States, has the right to be protected by the United States against lawless violence; this right is a right secured to him by the Constitution and laws of the United States; and a conspiracy to injure or oppress him in its free exercise or enjoyment is punishable under section 5508 of the Revised Statutes.

The consolidation, under section 1024 of the Revised Statutes, of several indictments against different persons for one conspiracy, if not excepted to at the time, cannot be objected to after verdict.

An act of Congress, requiring courts to be held at three places in a judicial district, and prosecutions for offences committed in certain counties to be tried, and writs and recognizances to be returned, at each place, does not affect the power of the grand jury, sitting at either place, to present indictments for offences committed anywhere within the district.

A jury in a capital case, who, after considering their verdict for forty hours, have announced in open court that they are unable to agree, may be discharged by the court of its own motion and at its discretion, and the defendant be put on trial by another jury.(p.264)

A juror summoned in a capital case, who states on voir dire that he has conscientious scruples in regard to the infliction of the death penalty for crime, may be challenged by the government for cause.

The provision of section 858 of the Revised Statutes, that "the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty," has no application to criminal trials.

Unless by express statute, the competency of a witness to testify in one State is not affected by his conviction and sentence for felony in another State.

A pardon of a convict, although granted after he has served out his sentence, restores his competency to testify to any facts within his knowledge.

Under section 1033 of the Revised Statutes, any person indicted of a capital offence has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced on the trial for proving the indictment; and if he seasonably claims this right, it is error to put him on trial, and to allow witnesses to testify against him, without having previously delivered to him such a list; and, it seems, that the error is not cured by his acquittal of the capital offence, and conviction of a lesser offence charged in the same indictment.

Upon an indictment for conspiracy, acts or declarations of one conspirator, made after the conspiracy has ended, or not in furtherance of the conspiracy, are not admissible in evidence against the other conspirators.

Four indictments, numbered in the record 33, 34, 35 and 36, on sections 5508 and 5509 of the Revised Statutes (copied in the margin[264.1]) were returned by the grand jury at January term, (p.265)1890, of the District Court for the Northern District of Texas, sitting at Dallas in that district, against Eugene Logan, William Williams, Verna Wilkerson, and Clinton Rutherford, for conspiracy to injure and oppress citizens of the United States in the free exercise of a right secured to them by the Constitution and laws of the United States, and for murder committed in the prosecution of the conspiracy; and were forthwith transmitted to the Circuit Court.

Indictment 34 averred, in the first count, that on January 19, 1889, at Graham, in the county of Young, and that district, Charles Marlow, Epp Marlow, Alfred Marlow, George W. Marlow, William D. Burkhardt and Louis Clift were citizens of the United States, and in the power, custody and control of Edward W. Johnson, a deputy United States marshal for that district, by virtue of writs of commitment from a commissioner of the Circuit Court of the United States for the district, in default of bail, to answer to indictments for an offense against the laws of the United States, to-wit, larceny in the Indian country, within the exclusive jurisdiction of the United States; and that, while said Johnson held them in his power, custody and control, in pursuance of said writs, the defendants, "together with divers other evil-disposed persons, whose names to the grand jurors aforesaid are unknown, did then and there combine, conspire and confederate by and between themselves, with force and arms, to injure and oppress them, the said Charles Marlow, Epp Marlow, Alfred Marlow, George W. Marlow, William D. Burkhardt and Louis Clift, then and there citizens of the United States of America, in the free exercise and enjoyment of a right, and because they were then and there exercising and enjoying said right, then and there secured to them" "by the Constitution and laws of the United States, to-wit, the right to then and there be protected by said deputy United States marshal from the assault of" the defendants and other evil-disposed persons, "and the right then and (p.266)there to be held in the power, custody and control of said deputy United States marshal under and by virtue of said writs heretofore set forth, and the further right, while in said custody, to be secure in their persons from bodily harm and injury and assaults and cruelties until they" "had been discharged by due process of the laws of the United States;" and that the defendants, in pursuance of such combination and conspiracy, and in the prosecution thereof, on January 19, 1889, and in the night time, went upon the highway in disguise, and waylaid and assaulted the said prisoners, while in the power, custody and control of said deputy United States marshal, with loaded shotguns, revolvers and Winchester rifles, and, in pursuance and prosecution of the conspiracy, feloniously, willfully and of their malice aforethought, and from a deliberate and premeditated design to effect his death, did with those weapons kill and murder Epp Marlow, then and there in the peace of the United States being; (charging the murder in due technical form;) "contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."

The other counts in this indictment were substantially similar, except that some of them alleged the prisoners to have been in the custody of Thomas Collier, sheriff and jailer of Young County, under the writs of commitment from the United States commissioner; or alleged Alfred Marlow to have been the person murdered; or charged one of the defendants as principal and the others as accessories in the murder.

Indictments 33 and 36 were substantially like 34. Indictment 35 added John Levell and Phlete A. Martin as defendants, and (besides counts like those in the other indictments, omitting, however, the charge of murder) contained counts alleging a conspiracy to obstruct the deputy marshal and the jailer in the execution of the writs of commitment, and in pursuance thereof, an attempt to take the prisoners from the jail on January 17th, and a murder of some of them on the highway on January 19, 1889.

Five other indictments had been returned by the grand jury in February and March, 1889, and transmitted to the Circuit (p.267)Court, against Logan, Martin and other persons, (some of whom were not the same as in the other four indictments,) containing charges, in various forms, like those in the added counts in indictment 35.

At October term, 1890, held at Graham, the following proceedings took place:

On October 21, 1890, the district attorney moved that the nine indictments be consolidated and be tried together, because they charged cognate and kindred crimes, and presented parts and phases of the same transaction. The defendants opposed the motion because the indictments set forth offenses of different grades, and were framed under different sections of the statutes, with different penalties and procedures. The motion was granted, and the indictments were all consolidated with No. 34, under the title "No. 34 consolidated;" and the defendants excepted.

On October 22, 1890, the defendants, "excepting to the several indictments presented against them, and by order of this court consolidated and now being prosecuted under case No. 34 on the docket of said court, charging said defendants with a conspiracy to injure and oppress Charles Marlow and others in the free exercise and enjoyment of rights secured to them by the Constitution and laws of the United States, move the court to quash said indictments and dismiss this prosecution, for the following reasons:

"1st. The said indictments are found and presented by a grand jury at the January term of the United States District Court for the Northern District of Texas, holding session at Dallas; and the allegations of said indictments show that the offenses therein charged were committed, if at all, in the subdivision of said district, offenses committed in which are cognizable alone at the term of the District and Circuit Court to be held at Graham in said Young County; therefore this court is without jurisdiction.

"2d. Said indictments charge these defendants with a conspiracy to injure and oppress Charles Marlow and others named in said indictments in the free exercise and enjoyment of their right secured to them by the Constitution and laws of the (p.268)United States, a right to be protected by a deputy marshal of the United States, in whose custody they were, under process of this court; and the said indictments are bad, because no such right as therein alleged is secured to said persons by the Constitution and laws of the United States; and therefore this court has no jurisdiction.

"3d. Said indictments charge no offense against the laws of the United States, or within the jurisdiction of this court; but show upon their face, by the allegations thereof, that the offense committed, if any, was against the laws of the State of Texas, of which the courts of said State have exclusive jurisdiction."

The court overruled the motion to quash the indictment, and the defendants excepted.

On October 30, 1890, the district attorney moved the court for an order to set aside the former order of consolidation, so far as to separate the five earlier indictments; to confirm the consolidation of indictments 33, 34, 35 and 36; to sever Levell and Martin from their co-defendants; and to order the consolidated case to stand for trial against Logan, Williams, Wilkerson and Rutherford. The court made an order accordingly, except that as to Williams the case was continued on his application, and with the consent of the district attorney. To this order no exception was taken by the defendants.

Logan, Wilkerson and Rutherford then severally pleaded not guilty, and a trial was had, resulting, on November 22, 1890, in this verdict: "We the jury find the defendant Clinton Rutherford not guilty. The jury cannot agree as to Eugene Logan and Verna Wilkerson." The court approved the verdict, and ordered it to be recorded; and also ordered that Rutherford be discharged from the indictment, and that Logan and Wilkerson stand committed to the custody of the marshal until further order.

At February term, 1891, held at Graham, the court, on motion of the district attorney, ordered to be consolidated with "No. 34 consolidated" an indictment, numbered 37, found by the grand jury in the District Court at Graham on October 29, 1890, and forthwith transmitted to the Circuit (p.269)Court, charging Collier, Johnson, Levell, Marion Wallace, Samuel Waggoner, William Hollis, Richard Cook and five others named, but not including Logan, with the same conspiracy, and in pursuance thereof with the attempt to kill on January 17th, and the murder on January 19th. No exception was taken to this order.

On motion of the district attorney, suggesting the deaths of Williams and Collier, the indictments were dismissed as to them.

The remaining defendants in indictment 37 "excepted to the several indictments" so consolidated, and made a motion to quash them, on the second and third grounds stated in the former motion to quash. This motion was overruled, and these defendants excepted to the overruling of the motion, and then pleaded not guilty.

Logan and Wilkerson filed a special plea that they had once been in jeopardy for the same offense, in this, that at October term, 1890, of the court they were tried upon the same indictment, and for the same murder and conspiracy by a jury; "that said jury were legally drawn, impaneled and sworn, and after hearing the evidence, argument of counsel and charge of the court, retired to consider their verdict; that said jury were in their retirement about forty hours, when they announced in open court that they were unable to agree as to these defendants. Thereupon the court, of its own motion, and without the consent of these defendants or either of them, discharged said jury from further consideration of this case, and remanded these defendants to the custody of the United States marshal; all of which will more fully appear by reference to copies of said verdict and the order of the court entered thereon, which are hereto attached. These defendants further state that there existed in law or fact no emergency or hurry for the discharge of said jury, nor was said discharge demanded for the ends of public justice; and, for the purpose of this motion or special plea only, these defendants aver and charge that the Circuit Court of the United States for the Northern District of Texas, at Graham, at October term, 1890, had jurisdiction over and power to try and determine said (p.270)cause." Annexed to this plea were copies of the verdict and of the order of the court thereon, above stated.

To this plea the district attorney filed an exception in the nature of a demurrer. The court ordered the exception to be sustained, and the plea held for naught; and to this order Logan and Wilkerson excepted.

By order of the court, on motion of the district attorney, Johnson and five others in indictment 37 were severed from the other defendants, leaving the case to proceed against Logan, Wilkerson, Levell, Wallace, Waggoner, Hollis and Cook.

Copies of the indictments, having indorsed on each the names of the witnesses upon whose testimony it had been found by the grand jury, were delivered to the defendants therein more than two days before the trial. But no list of the witnesses to be produced at the trial for proving the indictment was delivered to any of the defendants. When the case was called for trial, and the government announced that it was ready, the defendants suggested these facts, and moved the court that they be not required to proceed further until such lists should be furnished them. The court overruled the motion, and the defendants excepted.

At the impaneling of the jury, the district attorney, by leave of the court, put to fourteen of the jurors summoned this question: "Have you any conscientious scruples in regard to the infliction of the death penalty for crime?" and each of them answered that he had such conscientious scruples, and was thereupon challenged for cause. To all this the defendants at the time objected, "because the jury in the United States court has nothing to do with the penalty, but passes alone upon the guilt or innocence of the defendants, and because it is not one of the disqualifications of jury service under the laws of the United States, and because the defendants were unlawfully deprived of the service of each of said jurors, who had been regularly drawn and summoned on the special venire heretofore issued herein as their triors in this cause." The court overruled all these objections, and the defendants excepted.(p.271)

At the trial, forty witnesses, whose names were not indorsed on either indictment, were called and sworn to testify on behalf of the government. As to each and all of these witnesses the defendants objected to their testifying, because neither their names, nor a list containing their names had been delivered to the defendants two days before the trial, and because the defendants had objected, on this ground, to proceeding when the case was called for trial. The court overruled the objection, and admitted these witnesses to testify to material facts necessary to prove the indictments and to make out the case for the government; and the defendants excepted.

Phlete A. Martin and one Spear, offered as witnesses by the government, were shown, by certified copies of the records produced and exhibited to them, to have been convicted and sentenced for felony. Martin was convicted, in the Superior Court of Iredell County in the State of North Carolina, of felonious homicide, and was sentenced in August, 1883, to imprisonment for six months in the county jail, and served out his sentence. Spear was convicted, in the District Court of Tarrant County in the State of Texas, of two larcenies, which were felonies by the law of Texas, and was sentenced in January, 1883, to two terms of imprisonment of two years each, and served out his sentence; and the government offered and read in evidence "a full proclamation of pardon" of those offenses, issued to Spear by the governor of Texas in May, 1889.

The defendants objected to each of these two witnesses testifying, "because under the laws of Texas they are incompetent to testify under and by virtue of an express statute, and because, the offenses for which they were convicted being infamous crimes, they are incompetent to testify in the United States court held within the State of Texas;" and the defendants further objected to the proclamation of pardon issued by the governor of Texas to Spear, "because said pardon was issued to him after he had served his full time required in said judgment and sentence, and because the facts about which he was called to testify came to his knowledge after said judgment of conviction and sentence and before the issue of said (p.272)proclamation of pardon, and because said proclamation of pardon cannot have the retroactive effect of rendering said witness competent to testify to facts which, when they came to his knowledge, he was incompetent to testify to."

The court overruled all these objections, and admitted the testimony of both witnesses to material facts; and afterwards instructed the jury that they were competent, and that the convictions and sentences affected their credibility only. The defendants excepted to the admission of this evidence, and to the instruction of the court thereon.

The government introduced evidence tending to prove the following facts:

Shortly before October term, 1888, of the District Court of the United States for the Northern District of Texas, held at Graham, the four Marlows named in the indictment, and one Boone Marlow, (the five being brothers,) were arrested on warrants issued by a commissioner of the Circuit Court of the United States on complaints charging them with larceny in the Indian Territory, within the exclusive jurisdiction of the United States; and at that term they were indicted for that offense, and enlarged on bail, and went to live on a farm in Young County, about twelve miles from Graham, known as the Denson Farm.

Afterwards, on December 17, 1888, the sheriff of the county and his deputy, Collier, went to the farm to arrest Boone Marlow on a capias from a court of the state to answer a charge of murder. Without showing their warrant, Collier fired a pistol at him, and he fired at Collier, and, missing him, killed the sheriff. The killing of the sheriff caused great excitement in Young County, and much resentment on the part of his friends against the Marlows. Boone Marlow escaped and did not appear again. The four other Marlows were put in the county jail by the citizens, and surrendered by their bail, and were again committed to the jail by Edward W. Johnson, a deputy United States marshal, under writs of commitment from the commissioner directing him to do so, to answer the indictments for larceny.

On the night of January 17, 1889, a body of men, armed (p.273)and partly disguised, entered the jail, surrounded the steel cage in which the four Marlows were confined, and attempted to enter it; but being resisted by the Marlows, and one of the mob knocked down and injured, they finally withdrew without doing any actual violence to the prisoners.

On January 19, 1889, after dark, Johnson, the deputy-marshal, undertook to remove the Marlows, with Burkhardt and Clift, imprisoned under like commitments, to the jail of an adjoining county. The six prisoners, shackled together, two and two, (Alfred with Charles, Epp with George, and Burkhardt with Clift,) by irons riveted around one leg of each and connected by a chain, were placed in a hack driven by Martin, who was county attorney. Johnson, the defendant Wallace and two other men, all armed, followed in another hack; and the defendant Waggoner and another man, also armed, accompanied them in a buggy. When the three vehicles, in close order, had gone along the highway about two miles from Graham, they were attacked, near a run called Dry Creek, by a large body of men, armed and disguised, who opened fire upon the prisoners. Martin and the guards were in league with the attacking party. The four Marlows, in spite of their shackles, immediately dropped out of the hack, and wrested fire-arms, either from the guards or from their assailants, with which they defended themselves, killed two of the mob, wounded others, and finally put the rest to flight. Johnson was wounded, and he and all the guards also fled. Alfred Marlow and Epp Marlow were killed. The other two Marlows were severely wounded, but succeeded in freeing themselves from their brothers' dead bodies, took possession of the hack in which they had come, and together with Burkhart and Clift made their way to a neighboring village, and thence to Denson Farm.

On the following day Collier, the new sheriff of the county, (one of the defendants in this case, who died before the trial,) went to the Denson Farm with a large body of men whom he had collected for the purpose of recapturing the two surviving Marlows. He was there met by the sheriff of a neighboring county, whose aid he had summoned, but who declined, on (p.274)learning the facts of the case, to interfere in the matter. The Marlows refused to give themselves up to any one except the United States marshal or one Morton, his deputy; and no violence was offered to them; but Collier, with a body of men, kept guard near the house for some days until the arrival of Morton, who, against some remonstrance on the part of Collier, took the Marlows into his custody and removed them to Dallas. They were afterwards tried and acquitted on the charges against them.

At the trial of the present case, the principal question of fact was of the defendants' connection with the conspiracy charged in the indictment.

There was evidence in the case tending to show that Johnson, while lying wounded at his home after the fight, assented, at the solicitation of some of the defendants, to the publication in a newspaper of a statement that Logan was one of the guards at Dry creek on the night of January 19th. The government, not for the purpose of contradicting Johnson, but as independent evidence that Logan took part in the fight, not as a guard, but as one of the mob, called several witnesses to prove declarations of Johnson made after the fight, some on the same night and others some days after, that Logan was not a guard on that night, had meant to go as a guard, but had been excused from going, and must have been the person who informed the mob of the intended removal of the prisoners. The defendants objected to the admission of this evidence, among other grounds, because the declarations were not made in Logan's presence, and were made after the crime had been committed and the conspirators had separated. The judge overruled the objection, and admitted the evidence; and the defendants excepted to its admission.

The court also admitted, against the like objection and exception of the defendants, testimony to declarations of Collier, Hollis and of persons not known to the witnesses, some made on the night of the fight, after the escape of the Marlows, and while Collier, Hollis and others were in pursuit and were stopping at houses on their way to get other persons to join them, and some made on the following day at the (p.275)funeral of one of the conspirators and elsewhere, that Logan had been present at the fight, and not as a guard, and had been wounded there.

The two surviving Marlows were permitted to testify, on behalf of the government, that while they, with Burkhardt and Clift, were escaping in the hack after the fight, Charles Marlow told his companions that he believed Logan was the man at whom he shot, and who was shooting at him, during the fight. The defendants objected to this evidence, as declarations made in their absence, and as hearsay; and excepted to its admission.

The defendants requested the judge to instruct the jury that the matters alleged in the indictments and the proof made under them constituted no offense under the laws of the United States, and therefore they should return a verdict of not guilty. The judge refused so to instruct the jury; and instructed them as follows: "When a citizen of the United States is committed to the custody of a United States marshal, or to a state jail, by process issuing from one of the courts of the United States, to be held, in default of bail, to await his trial on a criminal charge within the exclusive jurisdiction of the national courts, such citizen has a right, under the Constitution and laws of the United States, to a speedy and public trial by an impartial jury, and, until tried or discharged by due process of law, has the right, under said Constitution and laws, to be treated with humanity, and to be protected against all unlawful violence while he is deprived of the ordinary means of defending and protecting himself." To this instruction, as well as to the refusal to give the instruction requested, the defendants excepted.

The judge further defined the crimes charged, of conspiracy, and of murder in the prosecution of the conspiracy; and submitted to the jury the questions whether the defendants were guilty of the conspiracy only, and whether they were guilty of the murder also.

Many other rulings and instructions excepted to at the trial, are omitted from this statement, because not passed upon by this court.(p.276)

On April 17, 1891, the jury found the defendants Logan, Waggoner and Wallace guilty of the conspiracy charged in the indictments, and not guilty of murder; and acquitted the other defendants. The court thereupon ordered and adjudged that the other defendants be discharged; and that Logan, Waggoner and Wallace were guilty of conspiracy as charged in the indictments, and sentenced each of them to pay a fine of $5000, to be imprisoned for a term of 10 years, and to be ineligible to any office or place of honor, profit, or trust, created by the Constitution or laws of the United States. On June 23, 1891, they sued out this writ of error under the act of March 3, 1891, c. 517, 5. 26 Stat. 827.

Mr. Jerome C. Kearby and Mr. A. H. Garland (with whom was Mr. H. J. May on the brief) for plaintiffs in error.

There are a few general propositions that should exercise a controlling influence in the decision of this case. The criminal jurisdiction of the United States courts must be expressly conferred by act of Congress: in other words: "The safe course undoubtedly is, to confine the jurisdiction in criminal cases to statute offences duly defined, and to cases within the express jurisdiction given by the Constitution," (1 Kent. Com. (13th ed. 332 et seq. and notes,) where all the leading cases are cited).

For a long period in the history of the country no attempt was ever made to get any criminal jurisdiction for the United States courts, except upon the high seas and at certain places under the special jurisdiction of Congress. Art. 1, sec. 8, cl. 17, Const.; Rev. Stat. sec. 5339 et seq. As was said by Chief Justice Marshall in United States v. Bevans, 3 Wheat. 336, 388, it is not the offence committed but the place in which it is committed, which must be out of the jurisdiction of the State. So far was this recognized that a soldier in the service of the United States killing a fellow-soldier was held amenable to the state laws and punished under them in the state courts in spite of the objection that he was liable only to the laws of the United States; and the act was done upon a soldier in (p.277)camp and under custody. The People v. Godfrey, 17 Johns. 225.

Outside of the places named, it was conceived the States could very well take care of all crimes committed within their territory; that their peace and dignity were offended by all such crimes outside of those places, and in fact there was no peace and dignity of the United States to be offended save and except in such places.

Among the first and most prominent departures from or innovations upon this rule was the case of Tennessee v. Davis, 100 U.S. 257, and that was sustained in an act of Congress. Rev. Stat. sec. 643, and the act of March 3, 1875, 18 Stat. p. 401. There was a special act giving this jurisdiction by removal from the state court, but the path to that result was not smooth and open, nor by any means discernible to all; for there is a dissent by Justices Clifford and Field of great energy and power, which is believed by many of the legal profession to be the law of the case. But there was an express act giving this jurisdiction, so far as Congress had the power to give it. But here, as we shall see, it is quite otherwise. Some other cases have occurred since Tennessee v. Davis on special statutes; but in each of them firm and unyielding opposition by a portion of the court was made. It will serve no useful purpose to refer to them here, as the court is familiar with them, and besides they rest upon statutes whose language is not doubtful conceding the power of Congress to enact them.

Then comes the question, "Why could not Texas punish these people for committing assaults, aggravated assaults, or murder within her unquestioned and unquestionable boundaries?" Her criminal code, it seems, is most ample for this purpose. It would be assuming too much to say she would not try to do it. But if this unfortunately were so, jurisdiction would not come to the United States court because Texas failed to do her duty. This will not stand the test. There must be some express law giving the jurisdiction, and that law must be constitutional. These men who were assaulted were in custody of the marshal, but that did not affect the jurisdiction of the State; whatever crime was committed was against (p.278)Texas. Godfrey (17 Johns. ubi supra) was, as the man he stabbed was, in the military service of the government, and the deceased was in camp and in custody too.

In casting about for reasons for taking these matters out of the Texas courts and from the Texas authorities it would appear from the indictment and from the elaborate charge of the trial court that sections 5508 and 5509 Rev. Stat. are resorted to as allowing this.

It would be tedious to go over and review the history of these sections, the reasons and purposes of their enactment. This has been done so often by this court in cases of the gravest character that no one at all up in the history of the country can well be ignorant on the subject. But it is perfectly safe to say, no such right and privilege as set forth here ever figured in the minds of the legislators in making these statutes. They came into life for different uses and objects entirely.

In a recent case before Justice Lamar in Georgia, these statutes are discussed with great clearness and accuracy in an opinion reviewing all the cases on this subject, and he points out most distinctly the scope and meaning of those acts, as reaching and applying to matters altogether foreign to anything disclosed in and by this record. The right in that case was that of a witness to appear and testify before the grand jury of a Federal court--a right--if a right, and not a duty, possibly as high and important as the right of a person or persons to be tried, who were held on commitments as alleged. In that case Justice Lamar demonstrates the privilege or right of a witness to appear, and it is not such as comes within the purview of the acts referred to. We adopt his reasoning without attempting to add to it. He says (48 Fed. Rep. 78, 83, 84):

"The Congress of the United States clearly possesses the constitutional power and is charged with the constitutional duty to protect all agencies of the Federal government, including the courts, their officers and all persons whose attendance is necessary in the proceedings of those courts, such as parties, witnesses and jurors. That power and duty of protection have been exercised and performed with regard to parties, witnesses and jurors in section 5406 of the Revised Statutes.(p.279)

"With respect to a prosecution for crime pending in a Federal court, or in a United States grand jury, the right which this particular section designs to protect is a public right, i.e. the right of the United States to have its witnesses and their testimony, and to have them protected in going to and returning from the court. The wrong punished in such a case is a public wrong, and its correlative is a public right."

"Section 5508 presupposes that the 'right and privilege,' involved has already been secured by the Constitution and laws of the United States, and therefore it is necessary to turn to them for the definition of the right in this indictment charged to be violated, in order to determine whether the indictment is authorized by the provisions of that section.

"Fortunately we are not without judicial construction of these provisions and of other statutes relating to cognate subjects, as well as judicial expositions of the constitutional amendments, which, it is contended, contained the authority for their enactment. Slaughter-House Cases, 16 Wall. 36; United States v. Cruikshank, 1 Woods, 308 [25 F.Cas. 707]; United States v. Cruikshank, 92 U.S. 542; United States v. Reese, 92 U.S. 214; United States v. Harris, 106 U.S. 629; Strauder v. West Virginia, 100 U.S. 303; Ex parte Virginia, 100 U.S. 339; Bradwell v. The State, 16 Wall. 130; Hurtado v. California, 110 U.S. 516; Civil Rights Cases, 109 U.S. 3; Ex parte Yarbrough, 110 U.S. 651; United States v. Waddell, 112 U.S. 76."

"In these decisions of the Supreme Court it has been found necessary to pass upon the construction of these and many other sections of the Revised Statutes in their application to the varying facts presented by each case. But they all show the steady adherence of that court to the fundamental principles enunciated by Mr. Justice Bradley in the case of The United States v. Cruikshank, 1 Woods, 308 [25 F.Cas. 707], and reiterated by the Supreme Court of the United States in the same case on a writ of error. They all agree that, aside from the extinction of slavery and the declaration of national citizenship, the constitutional amendments are restrictive upon the power of the general government and the action of the States, and that there is nothing in their language or spirit which indicates (p.280)that they are to be enforced by Congressional enactments, authorizing the trial, conviction and punishment of individuals for individual invasions of individual rights, unless committed under state authority; that the Fourteenth Amendment guaranteed immunity from state laws and state acts invading the privileges and rights specified in the amendment, but conferred no rights upon one citizen as against another; that the provision of the Fourteenth Amendment authorizing Congress to enforce its guarantees by legislation means such legislation as is necessary to control and counteract state abridgment, and that the protection and enforcement of the rights of citizens of the United States provided in the Enforcement Act of 1870 and the Civil Rights Act of 1875 refer only to such rights as are granted by and dependent on the Constitution and the valid and constitutional laws of the United States."

"But there is another view which demonstrates that this section does not sustain the indictment in this case. We cannot present it more forcibly than by quoting the following from the opinion of the Supreme Court, delivered by Mr. Justice Bradley in the Civil Rights Cases, 109 U.S. 3, 16, 17, 18. Referring to the provisions as above quoted, and other subsequent provisions in the statute from which the section was taken, the learned justice says:

"'This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to wit, the words, "any law, statute, ordinance, regulation or custom to the contrary notwithstanding," which gave the declaratory section its point and effect, are omitted; but the penal part by which the declaration is enforced, and which is really the effective part of the law, retains the reference to state laws, by making the penalty apply only to those who should subject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any State or Territory, thus preserving the corrective character of the legislation. Rev. Stat. 1977, 1978, 1979, 5510.... In this connection, it is proper to state that (p.281)civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals unsupported by state authority in the shape of laws, customs or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property or his reputation, but if not sanctioned in some way by the State, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts or to be a witness or a juror; he may by force or fraud interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen, but unless protected in these wrongful acts by some shield of state law or state authority he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment, and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with the power to provide a remedy.'"

"'And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the case provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.'"

Mr. Solicitor General for defendant in error.

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court.

The plaintiffs in error were indicted on sections 5508 and (p.282)5509 of the Revised Statutes, for conspiracy, and for murder in the prosecution of the conspiracy; and were convicted, under section 5508, of a conspiracy to injure and oppress citizens of the United States in the free exercise and enjoyment of the right to be secure from assault or bodily harm, and to be protected against unlawful violence, while in the custody of a marshal of the United States under a lawful commitment by a commissioner of the circuit court of the United States for trial for an offense against the laws of the United States.

By section 5508 of the Revised Statutes, "if two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same," "they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust, created by the Constitution or laws of the United States."

1. The principal question in this case is whether the right of a citizen of the United States in the custody of a United States marshal under a lawful commitment to answer for an offense against the United States, to be protected against lawless violence, is a right secured to him by the Constitution or laws of the United States, or whether it is a right which can be vindicated only under the laws of the several states.

This question is presented by the record in several forms. It was raised in the first instance by the defendants "excepting to" and moving to quash the indictment. A motion to quash an indictment is ordinarily addressed to the discretion of the court, and therefore a refusal to quash cannot generally be assigned for error. United States v. Rosenberg, 7 Wall. 580; United States v. Hamilton, 109 U.S. 63. But the motion in this case appears to have been intended and understood to include an exception, which, according to the practice in Louisiana and Texas, is equivalent to a demurrer. And the same question is distinctly presented by the judge's refusal to (p.283)instruct the jury as requested, and by the instructions given by him to the jury.

Upon this question, the court has no doubt. As was said by Chief Justice Marshall, in the great case of McCulloch v. Maryland, "The government of the Union, though limited in its powers, is supreme within its sphere of action." "No trace is to be found in the Constitution of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the Constitution." 4 Wheat. 316, 405, 424.

Among the powers which the Constitution expressly confers upon Congress is the power to make all laws necessary and proper for carrying into execution the powers specifically granted to it, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. In the exercise of this general power of legislation, Congress may use any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and the spirit of the Constitution. McCulloch v. Maryland, 4 Wheat. 316, 421; Juilliard v. Greenman, 110 U.S. 421, 440, 441.

Although the Constitution contains no grant, general or specific, to Congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offenses against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of Congress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the States of the Union, or within territory over which Congress has plenary and exclusive jurisdiction.(p.284)

To accomplish this end, Congress has the right to enact laws for the arrest and commitment of those accused of any such crime or offense, and for holding them in safe custody until indictment and trial; and persons arrested and held pursuant to such laws are in the exclusive custody of the United States, and are not subject to the judicial process or executive warrant of any state. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U.S. 624. The United States, having the absolute right to hold such prisoners, have an equal duty to protect them, while so held, against assault or injury from any quarter. The existence of that duty on the part of the government necessarily implies a corresponding right of the prisoners to be so protected; and this right of the prisoners is a right secured to them by the Constitution and laws of the United States.

The statutes of the United States have provided that any person accused of a crime or offense against the United States may by any United States judge or commissioner of a Circuit Court, be arrested and confined or bailed, as the case may be, for trial before the court of the United States having cognizance of the offense; and, if bailed, may be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for the offense, and be thereupon recommitted to the custody of the marshal, to be held until discharged by due course of law. Rev. Stat. 1014, 1018. They have also provided that all the expenses attendant upon the transportation from place to place, and upon the temporary or permanent confinement, of persons arrested or committed under the laws of the United States, shall be paid out of the Treasury of the United States; and that the marshal, in case of necessity, may provide a convenient place for a temporary jail, and "shall make such other provision as he may deem expedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until permanent provision for that purpose is made by law." Rev. Stat. 5536-5538.

In the case at bar, the indictments alleged, the evidence at the trial tended to prove, and the jury have found by their (p.285)verdict, that while Charles Marlow and five others, citizens of the United States, were in the custody and control of a deputy marshal of the United States under writs of commitment from a commissioner of the Circuit Court, in default of bail, to answer to indictments for an offense against the laws of the United States, the plaintiffs in error conspired to injure and oppress them in the free exercise and enjoyment of the right, secured to them by the Constitution and laws of the United States, to be protected, while in such custody and control of the deputy marshal, against assault and bodily harm, until they had been discharged by due process of the laws of the United States.

If, as some of the evidence introduced by the government tended to show, the deputy marshal and his assistants made no attempt to protect the prisoners, but were in league and collusion with the conspirators, that does not lessen or impair the right of protection, secured to the prisoners by the Constitution and laws of the United States.

The prisoners were in the exclusive custody and control of the United States, under the protection of the United States, and in the peace of the United States. There was a co-extensive duty on the part of the United States to protect against lawless violence persons so within their custody, control, protection and peace; and a corresponding right of those persons, secured by the Constitution and laws of the United States, to be so protected by the United States. If the officers of the United States, charged with the performance of the duty, in behalf of the United States, of affording that protection and securing that right, neglected or violated their duty, the prisoners were not the less under the shield and panoply of the United States.

The cases heretofore decided by this court, and cited in behalf of the plaintiffs in error, are in no way inconsistent with these views, but, on the contrary, contain much to support them. The matter considered in each of those cases was whether the particular right there in question was secured by the Constitution of the United States, and was within the acts of Congress. But the question before us is so important, and the learned counsel for the plaintiffs in error have [paragraph continues next page]

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"Sec. 5508. If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured; they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust, created by the Constitution or laws of the United States.

"Sec. 5509. If in the act of violating any provision in either of the two preceding sections any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the State in which the offense is committed."

By the laws of Texas, killing with malice aforethought, either express or implied, is murder; murder committed with express malice is murder in the first degree; the punishment of murder in the first degree is death, or imprisonment in the penitentiary for life; and the degree of murder, as well as the punishment, is to be found by the jury. Texas Penal Code of 1879, arts. 605, 606, 607, 609.