Logan v. United States
STATEMENT BY MR. JUSTICE GRAY.

Four indictments, numbered in the record 33, 34, 35, and 36, on sections 5508 and 5509 of the Revised Statutes, (copied in the margin, ) were returned by the grand jury at January term, 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 citizense 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 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 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:

'(1) 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.

'(2) 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 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.

'(3) 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 forth with transmitted to the circuit 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 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 14 of the jurors summoned this question: 'Have you any conscientions 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.

At the trial, 40 witness, 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 record 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 prociamation 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 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 nerthern 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 12 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 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 surviving Marlows. He was there met by with Burkhardt and Clift, made their way to a neighboring village, and thence to the 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 surriving Marlows. He was there met by the sheriff of a neighboring county, whose aid he had summoned, but who declined, on 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 guardon 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 was not a guard on that night, had meant 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, of 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 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 rullings and instructions excepted to at the trial are omitted from this statement, because not passed upon by this court.

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 $5,000, 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 St. p. 827.)

A. H. Garland, H. J. May, and J. C. Kearby, for plaintiffs in error.

Atty. Gen. Miller, Sol Gen. Tatt, and Asst. Atty. Gen. Maury, for the United States.

[Argument of Counsel from pages 276-281 intentionally omitted]

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

'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 afore-thought, 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. Pen. Code Tex. 1879, arts. 605-609.
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