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filed during vacation, and the clerk is absent, his deputy may issue the proper writ; 26 and that the address of the writ of certiorari to the United States marshal of the district, commanding him to make known to the clerk of the State court the removal of the cause, and that such court is required to send a transcript of the record to the Court of the United States, is equivalent to the address of the writ to the State court.27

When the officer or other person is under arrest,28 or is on bail,29 the writ of habeas corpus cum causa should issue. When the defendant has been arrested and has given bail, the writ of habeas corpus cum causa may be addressed to the marshal, with a direction that a duplicate be served upon the clerk of the State court; 30 but there is a decision to the effect that, in such a case, when no application for the writ of habeas corpus cum causa has been made, the writ of certiorari may be issued.31

Where there are several clerk's offices in the district, the petition should regularly be filed at the place where the next session of the Court of the United States is to be held; but the filing of the petition in another clerk's office is not a ground for remanding the cause.32 The truth of the allegations in the petition may be put in issue by any appropriate pleading. The filing of a plea to the jurisdiction is the better practice.3 It has been held that the issue thus raised should be tried by a jury, subject to the right of the court to direct a verdict, when proper, the burden of proof on the issue resting upon the petitioner.3

34

33

The State court loses all jurisdiction of the case as soon as compliance has been made with the statutory requirements and the writ of certiorari or habeas corpus com causa duly.

26 North Carolina v. Sullivan, 50 Fed. 593. Contra, State v. Sullivan, 110 N. C. 513, 14 S. E. 796.

27 North Carolina v. Sullivan, 50 Fed. 593. Contra, State v. Sullivan, 110 N. C. 513, 14 S. E. 796.

28 Virginia v. Felts, 133 Fed. 85. 29 State of Oregon v. Wood, 268 Fed. 975.

30 Virginia v. Felts, 133 Fed. 85. 31 North Carolina v. Sullivan, 50 Fed. 593.

32 Virginia v. Felts, 133 Fed. 85.
33 Re Duane, 261 Fed. 242.
34 Virginia v. Felts, 133 Fed. 85.

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served.35 'Any further proceedings, trial, or judgment therein in the State court shall be void." 36

The writ need not in all respects conform to the writ of certiorari at common law. It is sufficient if it informs the State court of proper grounds upon which the Federal District Court. assumes jurisdiction and notifies the State court to make return of the record. It need not show that the clerk of the Federal court has adjudged the petition sufficient, nor need it state the grounds of the authority of the Federal court, nor the purpose of the writ.87

No order of the State or of the Federal court is necessary for a removal under this statute.38

After the removal, it is the duty of the State prosecuting attorney to continue the prosecution, and the duty of the United States District Attorney to defend the suit.39

It seems that the indictment is the only record, the procurement of which is necessary, and that it is immaterial whether the original or a certified copy is transmitted.40

It has been suggested that, if the petitioner is unable to pay the fees of the clerk of the State court, the best course would be to supply the contents of the indictment by affidavit.41

The accused is called upon to answer to the offense as defined by the laws of the State; not to the crime as defined by a Federal statute.42

Since the Federal court has no express statutory power to order the payment of witness fees, except in cases to which the United States is a party, special authority to the marshal to pay the fees of defendant's witnesses should be asked from

35 Virginia v. Paul, 148 U. S. 107, 116, 13 Sup. Ct. 536, 37 L. ed. 386; State v. Davis, 12 S. C. 528. Con tra, State v. Circuit Judge, 33 Wis. 127 (holding that the State court has jurisdiction to determine whether the case falls within the statute).

36 U. S. R. S., § 643; North Carolina v. Kirkpatrick, 42 Fed. 689; State v. Davis, 12 S. C. 528.

37 North Carolina v. Sullivan, 50 Fed. 593.

38 Virginia v. Paul, 148 U. S. 107, 117, 13 Sup. Ct. 536, 37 L. ed. 386. 39 Delaware v. Emerson, 8 Fed. 411.

40 Virginia v. Felts, 133 Fed. 85, 89.

41 Virginia v. Felts, 133 Fed. 85, 89.

42 Georgia v. O'Grady, 3 Woods 496, Fed. Cas. No. 5,352; North Carolina v. Gosnell, 74 Fed. 734.

the Department of Justice, if he desires that they be paid by the Government.43

It has been said that, since no procedure is prescribed by the statute, and the offense as charged is against the State law and prosecuted by the State, the State practice should be followed, at least in prosecutions for felony, in all substantive matters, such as the impaneling and charging of the jury, the number of challenges allowed, ruling upon the competency of witnesses, and the confinement of the jurors during the trial.44

Where the State fails or refuses to prosecute in such a case, after its removal; it has been said that the proper course is for the Federal court to impanel a jury and direct a verdict of not guilty.45 It has been said: "Inasmuch as the defendant is prosecuted for an offense against the State law, it follows, in cases of conviction, that the State should execute the sentence. If the verdict and sentence be that the defendant be hanged, the order should direct that he be delivered to the sheriff of the county from which the case came for execution of sentence. If the sentence be imprisonment, the order should direct the marshal to deliver the defendant to the sheriff for transportation to jail or the State penitentiary, as the case may be. If the State authorities decline to receive the convict, an order should be made directing the marshal to liberate him. I perceive no reason why the federal government should execute such sentences. If the jury merely imposes a fine on the defendant, and it is not paid, he should, I think, be delivered to the sheriff of the proper county. If the fine should be forthwith paid by the defendant, I think the clerk of this court should receive it, and pay the sum to the clerk of the court from which the prosecution was removed; reserving, however, so much of the sum as represents the costs in the Federal court, if the. costs be adjudged against the defendant." 46

If the indictment is for any reason dismissed after the removal, the Federal court has no jurisdiction to find a new indictment for the offense against the State law.47

43 Virginia v. Felts, 133 Fed. 85, 95.

44 Virginia v. Felts, 133 Fed. 85. 45 Virginia v. Felts, 133 Fed. 85.

46 Virginia v. Felts, 133 Fed. 85, 95, 96, Cf. §§ 340, 343, 523, supra. 47 Bush v. Kentucky, 107 U. S. 110, 115, 27 L. ed. 354, 356.

§ 552. Removal of cases where the defense depends upon the Civil Rights Laws. "When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial, into the next District court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in 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. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleading, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause, and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter Fed. Prac. Vol. III-53

in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the District Court, as herein provided, a certificate, under the seal of the District Court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for a removal had been filed."1 "When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is an actual custody on process issued by said State court, it shall be the duty of the clerk of said District Court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said District Court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ." 2

A suit cannot be removed under the civil rights laws, where the Constitution and laws of the State do not discriminate against the accused, and the only grievance is against wrongs committed by the State judicial tribunals in the administration of a constitutional law. A criminal prosecution cannot be removed because of an unjust discrimination against the defendant before the trial or upon the trial.5

4

A civil action by a State against one of its own citizens cannot be removed under the civil rights laws.6

It has been held that the mere presentation of a petition for

$ 552. 1 Jud. Code, § 33, re-enacting U. S. R. S., § 641.

2 U. S. R. S., § 642.

3 Virginia v. Rives, 100 U. S. 313, 320, 25 L. ed. 667, 670; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; (1896) Gibson v. Mississippi, 16 U. S. 565, 40 L. ed. 1075; (1906) Kentucky v. Powers, 10 U. S. 1, 50 L. ed. 633; (1890) California v. Chue Fan (C. C.), 42 Fed. 865; (1905) Scott v. R. D. Kinney & Co. (C. C.), 137 Fed. 1009. As to the

right of an alien to a jury de medietate linguæ, see Commonwealth of Kentucky v. Wendling, 182 Fed. 140.

4 (1896) Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075; (1890) California v. Chue Fan (C. C.), 42 Fed. 865.

5 (1896) Murray v. Louisiana, 163 U. S. 101, 41 L. ed. 87.

6 (1883) Alabama v. Wolffe (C. C.), 18 Fed. 836.

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