November 9, 1931, the prosecuting attorney of the Arapahoe county, Colorado, filed an information in the state court charging that on November 7 Henry Dierks killed and murdered Melford Smith. A warrant issued, the accused was arrested thereon and admitted to bail. He filed a petition for a writ of habeas corpus cum causa in the United States district court alleging that he is a United States prohibition agent and other facts on which he claims immunity from prosecution in the state court and prayed removal of the case to the federal court under Judicial Code, § 33 as amended. 28 U.S.C., § 76. The district judge granted the writ, the marshal served it as required by the statute, and so the case was taken from the state court. The prosecuting attorney promptly
As the prosecuting attorney did not join issue with any of the allegations of the petition for removal, the jurisdiction of the federal court and the validity of its action are to be determined upon the allegations of the petition.
Eliminating formal parts and much unnecessary verbiage, we give its full substance. After showing that Dierks was accused, arrested and admitted to bail the petition represents:
He has long been a prohibition agent and the act for which he was informed against was done by right of his office and while he was engaged in the discharge of his official duties "in making and attempting to make an investigation concerning a violation of the National Prohibition Act and other Internal Revenue laws, and reporting the results of said investigation, and in protecting himself in the discharge of his duty as follows":
November 7, 1931, he and one Ellsworth, another prohibition agent, were directed by the administrator in charge to investigate a complaint of violations of the prohibition act and revenue laws reported as being committed at No. 3005 South Broadway, in Englewood. About 9.30 in the evening they went to that place for the purpose of investigating such violations. It was a hamburger stand or restaurant. Petitioner exhibited his badge and informed
Upon seeing the bottle of wine and believing Smith engaged in violating the prohibition act and revenue laws, petitioner "proceeded to take possession of said bottle of wine, and to arrest . . . Smith; that thereupon . . . Smith did resist arrest, did attempt to destroy said bottle of wine, and did proceed to assault your petitioner and did attempt to escape, and that thereupon one A1 Green did attempt . . . to help . . . Smith to escape, and that in the scuffle that ensued, and while your petitioner was engaged in the discharge of his official duties as such Federal Prohibition Officer in making, and attempting to make, said arrest of said Melford Smith, and in protecting himself in the discharge of his duties, and in attempting to seize said bottle of wine, it became necessary in order to subdue. . . Smith for your petitioner to strike, and he did strike, . .. Smith on the head with your petitioner's gun; that thereupon .. . Ellsworth, came to the assistance of your petitioner;" and that they "did arrest the said Melford Smith, the said A1 Green, and one Leonard Carpenter, and did convey them to the" jail at Denver.
And the petitioner goes on to say that when Smith was placed in the jail he did not appear to have received injury, but that on the following day he became sick and died and petitioner "alleges that the said Melford Smith
The protection afforded by § 33
Here the State of Colorado charges petitioner with deliberate murder. While homicide that is excusable or justifiable may be committed by an officer in the proper discharge of his duty, murder or other criminal killing may not. The burden is upon him who claims the removal plainly to set forth by petition made, signed and
As said by Chief Justice Taft speaking for the Court in Maryland v. Soper, supra, 33: "It must appear that the prosecution . . . has arisen out of the acts done by him under color of the federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty. . . . [p. 34]. In invoking the protection of a trial of a state offense in a federal court under section 33, a federal officer abandons his right to refuse to testify because accused of crime, at least to the extent of disclosing in his application for removal all the circumstances known to him out of which the prosecution arose. The defense he is to make is that of his immunity from punishment by the state, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based. He must establish fully and fairly this defense by the allegations of his petition for removal before the federal court can properly grant it. It is incumbent on him, conformably to the rules of good pleading, to make the case on which he relies, so that the court may be fully advised and the state may take issue by a motion to remand." And the opinion pointed out (p. 35) that the allegations of the petition for removal there under consideration did not negative the possibility that the accused were doing other than official acts at the time or on the occasion of the alleged murder or "make it clear and specific that whatever was done by them leading to the
It appears from a mere inspection of the petition before us that it does not measure up to the required standard. The outstanding fact is that petitioner killed Smith by intentionally striking him on the head with a gun. That is the basis of the State's prosecution. The burden is on the accused to submit a "candid, specific and positive" statement of the facts so that the court will be able to determine the validity of his claim for removal. It is sufficiently shown that in performance of official duties he and another agent went into the place described to observe whether federal law was being violated and that the deceased entered and was about to take a glass of wine from a bottle that he carried in his pocket. These facts led up to the crucial occurrences the principal of which was the death blow. And as to these the statements are not such as would naturally be employed by one desiring fully to portray what happened. For example, it is said petitioner "proceeded to take possession of said bottle" and to "arrest . . . Smith" and that thereupon Smith "did resist arrest" and attempt to destroy the bottle of wine and "did proceed to assault your petitioner" and did "attempt to escape" and that Green did attempt to assist deceased to escape and that "in the scuffle that ensued" and while petitioner was engaged in the discharge of his duties, etc., it became necessary "in order to subdue . . . Smith for your petitioner to strike "him "on the head with your petitioner's gun."
While phrases such as those quoted may appropriately be used to characterize facts that have been disclosed,
The district judge, should he deem it proper so to do, may permit the accused by amendment to his petition and additional evidence or otherwise to show that he is entitled to removal authorized by § 33. If such permission be denied or if, leave being granted, petitioner shall fail to meet the requirements of that section, the case is to be remanded to the state court as upon a peremptory writ of mandamus.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO think the rule should be discharged.