Kentucky v. Powers
Messrs. N. B. Hays and Lawrence Maxwell, Jr., for appellant in No. 393.

These cases arise out of a criminal prosecution begun in one of the courts of Kentucky, and, after several trials, removed on the petition of the accused, Caleb Powers, into the circuit court of the United States for the eastern district of Kentucky.

The principal question to be determined is whether the prosecution was removable from the state court.

After referring to the indictment and to the transfer of the prosecution into the circuit court of the United States, the petition for removal alleged that the accused was within the jurisdiction of the United States and of the commonwealth of Kentucky; that he was, and all of his life had been, a citizen of the United States, and of that commonwealth, and as such citizen was entitled to enforce in the judicial tribunals of Kentucky, on the trial and final disposition of said prosecution, all equal civil rights and equal protection of laws secured to him by that part of the Amendment providing that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' [Art. 14, § 1.] He also claimed the rights secured by § 1977 of the Revised Statutes of the United States (U.S.C.omp. Stat. 1901, p. 1259), providing, 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other;' as well as those secured by the act of Congress of March 1st, 1875. (18 Stat. at L. 335, chap. 114, U.S.C.omp. Stat. 1901, p. 1260), the preamble of which declares that: 'Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law.'

The petition then refers to the arrest of the accused on the 9th of March, 1900, upon the charge of being an accessory before the fact to the wilful murder of Wiliam Goebel, and alleges that on the 10th of March, 1900, and prior to the finding and reporting of the indictment against the accused, 'William S. Taylor, who was then the duly and legally elected, qualified, actual, and acting governor of the state of Kentucky, and had in his actual possession and under his actual control the office and executive mansion prepared by said state for its governor, and all the books, papers, records, and archives belonging thereto, in due form of law duly and legally granted and delivered to your petitioner, and your petitioner, accepted from him, a full, complete, absolute, and unconditional pardon, release, and acquittance of the identical charge against him in said indictment, and the charge now pending in said prosecution against your petitioner in said Scott circuit court, and under which your petitioner is now in custody; that said Taylor, at the time he granted said pardon, had the right and authority, under the Constitution and the laws of Kentucky, to grant same; that your petitioner accepted said pardon, and from the time same was granted he claimed, and he now claims, the full benefit and effect thereof and his liberty thereunder. That on the day said pardon was granted him it was, by said Taylor, as governor aforesaid, duly entered on the executive journal kept in his office, and a certificate thereof was duly and in due form of law, and as required by law, issued and delivered to him, duly executed by said governor and the secretary of said state, and placed in your petitioner's possession, and same was by your petitioner accepted. Your petitioner further states that at the time the said pardon was granted to him by his Excellency, the said William S. Taylor, and subsequent thereto, the said William S. Taylor was, and prior thereto he had been recognized, regarded, and treated as the duly elected, actual, and acting governor of the state of Kentucky by the executive power and executive departments, of the United States government, including the President, the Attorney General, and the Postmaster General, and by the postmaster at Frankfort, Kentucky;' that 'for said state to hold him in custody, or to try or to require him to be tried in any one of its courts for the offense alleged against him in and by said indictment, since the granting and acceptance of said pardon and the issuance and acceptance of the certificate thereof, is a denial to him of the equal protection of the laws and the equal civil rights to which he is entitled under and as provided for in and by the portions of said amendment to the Constitution of the United States above copied, and by said section of said Revised Statutes, and by said act of Congress;' and, that 'notwithstanding the granting and acceptance of said pardon, the issuance and acceptance of said certificate, the fact that the said William S. Taylor was the governor of Kentucky when said pardon was granted and when said certificate was issued, and was then recognized as such governor by said executive officers of the United States, that he cannot enforce in the said Scott circuit court in which said prosecution is pending, or in that part of the state in which said Scott county is located, or in any court, judicial tribunal, or place of the said state, the equal civil rights and the equal protection of the laws secured to him by each and all of the three portions of said amendment copied above, and by said section of the Revised Statutes of the United States, and by said act of Congress for the reasons now set forth.'

The accused here refers to the three trials to which he was subjected, and after stating that he was confined in the county jail, without bail, and awaiting trial, proceeds in his petition: 'That at each of said trials your petitioner presented to said Scott circuit court said certificate of pardon, and pleaded and offered in evidence said pardon and said certificate as a bar and complete defense to said prosecution and the trial and conviction of your petitioner under said indictment, but at each of said trials the said trial court overruled said pleas and refused to admit said pardon and certificate as evidence, and held and adjudged that said pardon and certificate were null and void and of no effect whatever, and in each of said trials the said holding of the trial court in reference to said pardon and certificate was duly excepted to and made one of the grounds which was presented and on which a reversal was asked by said court of appeals on the trial of each on said appeals heretofore mentioned, and on each one of said appeals your petitioner conteded that said pardon and certificate entitled him to an acquittal of the charge contained in said indictment, but the said court of appeals, on the trial and final disposition of each one of said appeals, failed and refused to hold that said pardon and certificate authorized your petitioner's acquittance of said charge; instead, that court, as the said trial court had done, held that said pardon and certificate were and are null and void and of no effect whatever. The holding of said court of appeals on the trial of each of said appeals was reduced to writing, and each holding, as prepared and ordered by said court of appeals, has been, by the official reporter of that court, under the court's direction, caused to be printed in, and is now a part of, the official printed reports of said court, and all of said holdings are now in full force and effect as, and they in fact are, the laws of said state in this case, and are binding upon and will have to control this honorable court. That the instances named are the only instances in which said court of appeals or any trial court of said state ever held any pardon and certificate thereof, granted, entered, and issued by any governor of Kentucky, to be void and of no effect. That in consequence of the action and holdings of said trial court and said court of appeals, above stated, this honorable court, cannot, and should this case be retried in this honorable court, could not, allow your petitioner to plead or introduce said pardon and certificate as evidence as a defense to the said charges contained in said indictment against him, and could not allow your petitioner his liberty and acquittal under and by virtue of said pardon and certificate, or allow said pardon and certificate to have any effect whatever in your petitioner's behalf, but instead is and will be bound in consequence of said laws to hold said pardon and certificate null and void and of no effect whatever.'

In the second paragraph of his petition for removal the accused states that he is a citizen of the United States and of Kentucky, and as such is entitled to enforce in the judicial tribunals of the state the equal civil rights and the equal protection of the law secured to him by the above constitutional provisions and statutes.

His petition then alleges: 'But your petitioner states that he is denied and cannot enforce in the judicial tribunals of this state and in the part of the state where this action is pending, the rights secured to him by said laws and each of said laws, because the said state of Kentucky has enacted a law which has not been repealed nor abrogated, and which is now in full force and effect, to wit, § 281 of the Criminal Code of Practice of said state, which section reads as follows: 'The decisions of the court upon challenges to the panel and for cause, upon motions to set aside an indictment, and upon motions for a new trial, shall not be subject to exception;' and because of the decisions of the court of appeals of Kentucky, the highest judicial tribunal in this state, rendered in this action. . . . upholding the validity of said law, notwithstanding its plain contravention of the said provisions of the Constitution of the United States.

  *  *  *  *

'Your petitioner states that the death of said Goebel occurred during the existence of intense political excitement following the election of a governor and other state officers in November, 1899; that said Goebel had been the Democratic candidate for the office of governor, and was, at the time of his death, contesting the right of said William S. Taylor to the office of governor, said Taylor, who was a Republican candidate for that office, having been actually elected governor and declared elected governor by the duly and legally constituted authorities, and inducted into said office; that this petitioner was, at said election, the Republican candidate for the office of secretary of state, and had been actually elected and declared elected to said office, and had been inducted into said office; and there was pending at the time of said Goebel's death a contest for the said office of secretary of state, against this defendant, inaugurated by one C. B. Hill, who had been a Democratic candidate for said office; that the public mind was, by said election and said contest for the office of governor, lieutenant governor, secretary of state, and the other state offices greatly inflamed, and bitter and intense political animosities were excited and fostered by reason thereof, and that such feelings existed at all of the trials of this petitioner hereinafter referred to, and such feelings still exist against him on the part of said adherents of said Goebel throughout the state of Kentucky, and particularly in Scott county.

'Your petitioner further states that he was first put on trial under said charge on the 9th day of July, 1900, at a special term of the Scott circuit court begun and holden on said date; that said trial resulted in a verdict of conviction, and he was sentenced to confinement in the state penitentiary during his natural life; that the jury in said trial was selected from a large number of the citizens of said county, and that, with three or four exceptions, all of the venire men were purposely summoned because of their known party affiliations, which were different from the known party affiliations of your petitioner; that by the laws of Kentucky in such cases made and provided the prosecution has a right to five, and the defense of fifteen, peremptory challenges, and that with the exception of three or four Republicans and Independent Democrats, all of those summoned were known to be partisan Goebel Democrats, while your petitioner was and is a Republican, and was known to belong to the Republican party; that from venire men so summoned a trial jury was selected that was composed almost if not entirely, of Goebel Democrats, and no Repubilcans, although there were then residing in said county many hundreds of citizens qualified for jury service who were Republicans and Independent Democrats, and not supporters of said Goebel in his candidacy or contest for the office of governor of Kentucky, nor in sympathy with him; but your petitioner avers and charges that all of such citizens, with the exceptions named, were intentionally passed by in summoning said venire men, in order that your petitioner should not have a fair trial by a jury of his peers, impartially selected, but to the end that such jury might be selected to convict him.

'Your petitioner further respectfully represents that the sheriff of Scott county, to whom is assigned the duty of selecting all jurors whose names are not drawn from the jury wheel, is a Goebel Democrat, as are also the deputy sheriffs of said county.

'Your petitioner further states that at said first trial hereinbefore mentioned the judge of the Scott circuit court, when the original list of names drawn from the jury wheel for jury service had been exhausted, although requested by counsel for this petitioner, and while there remained in said jury wheel about one hundred names, to draw the names remaining in said jury wheel therefrom, refused to do so, but directed the sheriff to summon one hundred men for jury service, and explicitly directed him to summon no men for jury service from the city of Georgetown, but to go out into the county for that purpose. Your petitioner states that the said one hundred names that remained at said time in said jury wheel had been placed there by impartial and unbiased jury commissioners prior to the election in November, 1899, and prior to the killing of said Goebel. Your petitioner states that on the morning following the order of the court to the sheriff to summon the one hundred men for jury service from the county, and when said one hundred men so summoned had appeared in court, they were seated on one side of the court room, separate and apart from the spectators and other persons; that the judge of said court, without notice to your petitioner or any of his counsel, and without making any request of any of his counsel or of this petitioner to accompany him, left the bench and went to the side of the court room wherein said parties summoned for jury service were assembled, and without swearing said parties, so far as this petitioner saw, heard, or has information, as to their excuses for not serving as jurors, if any they had, called them up to him one at a time, not in the hearing of this petitioner, or his counsel, and excused such of them from jury service as he saw fit, without any knowledge on the part of this petitioner or his counsel as to why such parties were thus excused, and on the following day the same proceeding was had as to forty additional men that had been summoned for jury service in this case.

'Your petitioner further states that an appeal was taken from the judgment of said court to the Kentucky court of appeals, and that at the January term, 1901, of said court, the judgment of the trial court was reversed; that your petitioner was again tried in the Scott circuit court at its October, 1901, term, and a verdict of guilty returned again, fixing the punishment of your petitioner at confinement in the state penitentiary for life; that in summoning the venire men from whom the jury was selected at the second trial, the same unjust and unlawful discrimination was practised, and that of one hundred and twenty-five venire men summoned in Scott county, all were partisan Goebel Democrats except three, and of one hundred and sixty-eight venire men summoned in the adjoining county of Bourbon, all were partisan Democrats except three, so that of the aggregate of two hundred and ninety summoned, two hundred and eighty-four were Goebel Democrats and six were Republicans, notwithstanding the fact that there were many hundreds of citizens in each of said counties qualified for jury service who were Republicans, or Independent Democrats, and not Goebel partisans.

'Your petitioner states that at said second trial he objected to the formation of a jury from the venire men summoned as hereinbefore stated, and moved to discharge the entire venire on the ground that he could not obtain a fair trial before a jury selected therefrom, and filed in support of said objection an affidavit.'

The affidavit referred to is given in full in the margin.

The affiant states that he ought not to be required to go to trial before a jury drawn as a panel for service at the present term of this court or already summoned from the county of Bourbon, for the following reasons, namely: that the political canvass in this state in 1899, in which the late William Goebel was candidate for the office of governor, was a heated and angry one, and tended to create great antagonism in the minds of his political adherents against those who opposed; that this canvass was followed by a contest before the state legislature for said office, in which the deepest and fiercest passions were stirred in the minds of his followers in this county, as well as in other counties of the state, including the county of Bourbon; that during that contest the said Geobel was killed, which killing tended still further to deepen and intensify the political passions of his friends and admirers in this county and in the county of Bourbon and throughout the state, against this affiant, who was a candidate for a state office on the Republican ticket in the said year of 1900. The passions thus created have since that time been stimulated and fed by the political contests which have since followed, and are still in existence, in this county and Bourbon county. Affiant says that, at a special term of this court in July, 1900, he was put on trial in this county, charged with being an accessory before the fact to the killing of said William Goebel, and was by the jury found guilty. From the judgment of the court at that term, the affiant appealed to the appellate court, the appeal being taken in the early part of September in said year; that at the subsequent October term of said court, jury commissioners for this county were selected whose duty it was to select a large number of names and place them in the jury wheel for service during the year 1901.

The three commissioners appointed were John Bradford, Ben Mallory, and H. H. Haggard, all three of whom were partisan supporters and allies, in the The petition then proceeds: 'Your petitioner states that although the statements in said affidavit were true and known to be true by the court, he was forced to submit to trial before a jury composed entirely of Goebel Democrats, your petitioner always having been a Republican in politics, as hereinabove stated; and, as hereinabove stated, your petitioner was at said trial found guilty and sentenced to imprisonment for life by the judgment of said Scott circuit court; that your petitioner took an appeal from the judgment so rendered, which judgment was reversed by the court of appeals of Kentucky at the September, 1902, term; that your petitioner was again and for the third time tried at a special term of the Scott circuit court under the charge hereinabove mentioned, which trial was begun and holden on the 3d day of August, 1903, and that of the number of one hundred and seventy-six venire men summoned from Bourbon county, from which the jury was selected, three only, or possibly four, were Republicans, and the remaining one hundred and seventy-three (two) were Gobel Democrats and were summoned for Goebel Democrats and were summoned for from your petitioner, whereas there were many hundreds of Republicans and Independent Democrats in said county qualified for jury service, but your petitioner states they were purposely avoided and passed by in summoning said venire men, and that said trial jury was not selected impartially, as required by law; that in the year 1896 there were over twenty-six hundred votes in said county for William McKinley, Republican candidate for President of the United States, and about twenty-two hundred votes cast for William J. Bryan, his Democratic opponent; that in the year 1899 William S. Taylor, Republican candidate for governor of Kentucky, received twenty-seven more votes in said county than were cast for said William Goebel, his Democratic opponent, and that a jury impartially selected could not have been and would not have been, as it was, composed entirely of Goebel Democrats,-on his said third trial one juror, a Goebel supporter, but of doubtful politics, excepted.

'Your petitioner further represents that at the third and last trial of this petitioner in said Scott circuit court, the judge thereof entered an order directing the sheriff of said Scott county to summon two hundred men from Bourbon county for jury service; that this petitioner's attorneys asked the court to admonish the sheriff to summon an equal number of men of each political party; that this request was refused, and thereupon counsel for this petitioner asked the court to instruct the sheriff to summon the talesmen as he came to them regardless of political affiliation. This the court also refused to do.

'Your petitioner further states that said trial resulted in a verdict of guilty, affixing the death sentence, and a judgment was thereupon entered, from which judgment an appeal was taken to the court of appeals of Kentucky, and on December 6th, 1904, the judgment of conviction was for the third time reversed by said court, and that it is the purpose and intention of the Commonwealth of Kentucky to subject this petitioner to a fourth trial under said charge, within a short time, in said Scott circuit court.

'Your petitioner further respectfully states that at each of said three trials the facts in relation to the jurors given or hereinbefore recited were embraced in affidavits filed in support of challenges to the panel and the venire and objections to the formation of the jury from the men summoned as hereinabove mentioned, and were also embraced in the motions and grounds for new trial prepared and filed on behalf of this petitioner at each of said trials, but that they were disregarded by the court and your petitioner's challenge to the panels, to the venire, and the motions for new trials in each instance overruled; that by reason of § 281 of the Criminal Code of the state, hereinbefore quoted, this petitioner was and is denied the right of any exception on said grounds, and the court of appeals of Kentucky, on each of the three appeals hereinbefore set forth, have decided that no irregularity in the summoning or impaneling of the jury is a reversible error, and they are powerless to reverse any judgment of said court by reason of such facts, and have held said law to be valid, and such law is not the law of this case, and said court of appeals of Kentucky are powerless upon any future appeal to reverse any judgment of said court by reason of a repetition of the acts hereinbefore set forth, or for any other irregularity or improper conduct in the formation of a jury, no matter how prejudicial to the substantial rights of your petitioner they may be, and must be followed and cannot be disregarded by this honorable court.

'Your petitioner therefore prays this honorable court that the said indictment and the prosecution pending thereunder in this honorable court against your petitioner be removed into the circuit court of the United States for the eastern district for trial at the next ensuing term of said circuit court, and your petitioner will ever pray.'

Messrs. N. B. Hays, Lawrence Marwell, Jr., Robert B. Franklin, and C. J. Bronston for petitioner in No. 15 Original.

[Argument of Counsel from pages 15-18 intentionally omitted]

Messrs. Frank S. Black, Richard Yates, H. Clay Howard, James C. Sims, E. L. Worthington, R. C. Kinkead, and R. D. Hill for appellee.

Messrs. E. L. Worthington, Frank S. Black, Richard Yates, R. D. Hill, James C. Sims, and H. Clay Howard for respondent.

[Argument of Counsel from pages 18-22 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court: 

Notes
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