Opinion by Woods, J.

It is conceded that the petition for removal contains all the averments necessary to be made, under section 643 of the United States Revised Statutes, for the removal of a criminal prosecution from a state to the federal court. Heretofore the constitutionality of the act under which this removal is sought has been vigorously assailed in this court. That question, however, has been definitely settled in favor of the constitutionality of the act by the recent decision of the supreme court of the United States in the case of The State of Tennessee v. Davis, 100 U. S., 257 (CoNST., $3 2473-2500).

§ 3211. When a criminal prosecution may be said to have been commenced under Revised Statutes, section 643.

The question which has been mainly discussed by counsel is whether, under the facts of this case, it can be held that a criminal prosecution against the accused has been commenced in a court of the state, within the meaning of section 643 of the Revised Statutes of the United States. Leaving out that portion of the section which does not apply to this case it reads as follows: "When any . . . criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under such law, . . . the said prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to such circuit court." Upon the filing of the petition setting out the facts, and verified and certified as required by law, "the cause shall, thereupon, be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in said court. When the suit is commenced by capias, or by any other similar form of proceeding by which a personal arrest is ordered, the clerk shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court, or left at his office by the marshal of the district, . . . and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon the delivery of such process, shall be held to be removed to the circuit court, and any further proceedings, trial or judgment therein in the state court shall be void."

The first question for decision under this statute is, has a criminal prosecution been commenced against these petitioners? It is insisted by counsel for the state of Georgia that a criminal prosecution cannot be considered as commenced until indictment found. I have been able to discover no solid ground for this claim. An affidavit charging the defendants with the crime of murder has been made and filed by a competent person before a judicial officer competent to act. The law makes it his duty to consider the affidavit, and to determine whether its averments make it incumbent on him to issue a warrant for the arrest of the parties accused. He has performed that duty and decided judicially that a warrant should issue. He has accordingly issued his warrant and directed it to the proper officers, requiring them to arrest the parties named therein. This warrant has come to the hands of the sheriff of Fulton county, who, in obedience to its mandate, has arrested and taken into custody, and for six days has held in custody, and deprived of their liberty these defendants. To be able to say to them, when they apply for the removal of this prosecution,

that their petition must be denied because no prosecution has been commenced against them, the court must shut its eyes to the conceded facts in the case. It would be hard to convince a man who was taken away from his business and family, and held in custody by a sheriff on a lawful warrant for his arrest, duly issued by a judicial officer upon an affidavit duly made before him, charging him with an offense against the criminal laws of the state, that no criminal. prosecution had been commenced against him.

There is nothing in the words of section 643, or in its purpose, to warrant such an idea. Its object is to take from the state courts jurisdiction of all cases that fall within its terms as soon as they are commenced. Now, when is a criminal prosecution commenced? Obviously as soon as the warrant is issued. It has been so held in the case of Queen v. Brooks, 1 Denis., 217 (2 Brit. Cr. Cas., 222). This was an indictment upon 9 Geo. IV., ch. 69. By the fourth. section of the statute it was declared: "The prosecution for every offense punishable by indictment, by virtue of that act, shall be commenced within twelve calendar months after the commission of the offense." The offense was committed December 4, 1845. The information before justices and warrant were on December 19, 1845. Brooks was apprehended September 5, 1846, and Gibson October 21, 1846. The indictment was preferred April 5, 1847. The question was reserved for the opinion of the judges whether the prosecution was commenced in time. They all concurred in holding that the prosecution was commenced within twelve calendar months after the commission of the offense. To the same effect see 1 East, P. C., 186; Rex

v. Wallace, R. & R. C. C., 369; and Rex v. Phillips, Russ. & Ry., 369 (1 Brit. Cr. Cas., 369). The difficulties and embarrassments which would arise in this court in the future progress of the case, if it should now be removed, have been urged by counsel for the state of Georgia as an argument against the view above taken. The same argument has been before used in this court against the removal of a criminal prosecution from a state court to this court after indictment found.

It was urged that the statute did not authorize such removal on account here of the difficulties and incongruities which would arise in a trial in this court of an offense against the laws of the state. That argument did not prevail, and an indictment for murder, removed from the state courts, was tried in this court. Georgia v. O'Grady, 3 Woods, 496. No insuperable difficulties were encountered in the case, and none, it is fair to presume, will be in this. No reason is perceived why an indictment for an offense against the laws of Georgia may not be found by a grand jury of this court in the case of a prosecution removed from the state court. The difficulties in the way of such an indictment, and the subsequent trial of it, are, in my judgment, imaginary. But, if they were real, it would be no answer to the petitions for removal. In the case of State of Tennessee v. Davis, supra, the supreme court says: "Whether there is any mode and manner of procedure in the trial prescribed. by the act of congress is totally immaterial to the inquiry whether the case is removable, and this question could hardly have arisen upon a motion to remand the case. The imaginary difficulties and incongruities supposed to be in the way of trying in the circuit court an indictment for an alleged offense against the peace and dignity of a state, if they were real, would be for the consideration of congress. But they are unreal."

All this applies to proceedings in criminal practice so removed, no matter at what stage of the prosecution the removal may be made. My conclusion is,

therefore, that when this petition for removal was filed, on July 13th, a criminal prosecution had been commenced against the defendants. But it is insisted that, if there was a criminal prosecution commenced, it was not commenced in a court of the state. The contention is that the proceedings of John B. Suttles, Jr., justice of the peace, in taking the affidavit of Mary E. Jones and filing it, and issuing his warrant of arrest thereon, were not proceedings in a court. It is obvious to remark that, if a criminal prosecution had been commenced at all, it must necessarily have been commenced in a court. The constitution of Georgia, art. 6, § 1, declares: "The judicial powers of this state shall be vested in the supreme court, superior courts, courts of ordinary, and justices of the peace," etc.

§ 3212. In Georgia a justice of the peace is a judicial officer, and his court is a court in which criminal proceedings may be said to be commenced.

A justice of the peace is, therefore, an officer, clothed with judicial powers, when acting in his judicial capacity, and within his jurisdiction he is, to all intent and purposes, a court. In receiving the affidavit of Mary E. Jones, and deciding that it sufficiently charged a crime against the laws of the state and authorized the issuance of a warrant, he acted judicially. His proceedings in the matter were the proceedings of a court, having jurisdiction to do everything that was done. By the code of Georgia a justice of the peace, while sitting as a committing magistrate, is recognized as a court. Section 4730 declares: "Any judge . or justice of the peace may hold a court of inquiry to examine into any accusation against any person legally arrested and brought before him." This prosecution had progressed so far before the filing of the petition for removal that the very next step would have been the holding of a court of inquiry by the justice of the peace. The prosecution was pending before him for that very purpose and no other. At this stage of the case this petition was interposed, and this court invoked to take the next judicial step in the prosecution. Does the claim that there was no court in which the prosecution was pending stand on any solid ground? In my judgment, clearly not.

My conclusion is, therefore, that when this petition was filed it asked for the removal of a criminal prosecution which had been commenced against the peti tioners in a court of the state of Georgia; and, as the petition sets out all the other facts necessary under section 643 of the Revised Statutes to justify a removal of a criminal prosecution from a state to a federal court, that the filing of the petition and the service on the state court of a duplicate of the writ of habeas corpus cum causa, ipso facto, removes the prosecution to this court.

EX PARTE ANDERSON.

(Circuit Court for Louisiana: 3 Woods, 124-127. 1878.)

Opinion by BRADLEY, J.

STATEMENT OF FACTS.-I have given careful consideration to the application for removing the prosecution in the above case to the circuit court of the United States, and for a writ of habeas corpus cum causa to that end. The right of removal is claimed under section 643 of the Revised Statutes of the United States; and under that clause of the section which authorizes a removal when any civil or criminal prosecution is commenced in a state court against an officer of the United States, or other person, on account of any act done under the provisions of title xxvi, "The Elective Franchise," or on account of any right,

title or authority claimed by such officer or other person, under any of said provisions. To entitle the petitioners to the removal sought, therefore, their petition ought to show that the prosecution against them is either for some act done by them as officers of the United States, or otherwise under the provis ions of title xxvi, or on account of some right, title or authority claimed by them under any of said provisions. Does the petition show this? It states that the information against them charges them with falsely and feloniously uttering and publishing as true, in their capacity of returning board officers, a certain altered, false, forged and counterfeited public record, to wit, the returns from the parish of Vernon of an election held for presidential electors in the state of Louisiana, on the 7th day of November, A. D. 1876, under a writ of election dated September 16, 1876, ordering the same, knowing the said public record to be false, altered, forged and counterfeit.

The petition further states that the acts for which they are accused are charged to have been done whilst they were acting under authority of law, and under oath of office, as a board of canvassers of election returns for presidential electors; and it claims that, in so acting, they were officers of the United States, and that the correctness and legality of their said election returns were duly presented by the said presidential electors before the electoral commission appointed under act of congress, passed January 29, 1877; and were by said commission fully investigated, adjudicated and sustained, and thereby became a thing adjudged.

The petition further states that all their acts in the premises were done in accordance with the true intent and meaning of the fifteenth amendment to the constitution of the United States, and of the enactments of congress passed to enforce it those acts consisting of officially inspecting, certifying, reporting and giving effect to the votes of all the citizens legally polled at said election in said parish of Vernon, and to none other. The petition denies the charge of making false, altered or forged returns, and insists that the petitioners are prosecuted for having, in their official capacity, given effect to the laws of the United States for the enforcement of the equal, civil and political rights of citizens of the United States, growing out of and appertaining to the elective franchise.

§ 3213. Returning board, officers of the state, not of the United States.

The claim that the petitioners, in acting as members of the returning board of Louisiana, were officers of the United States in reference to the election. returns of presidential electors, is not tenable. They were state officers, appointed under a state law and acting under state authority. The claim that the correctness of their returns was adjudicated by the electoral commission is equally untenable. The electoral commission declined to go behind the returns, or to examine into their correctness. It denied its jurisdiction to do this. These grounds of removal, therefore, are not founded on fact.

§ 3214. In a petition for the removal of a cause to a federal court the facts authorizing a removal must be explicitly stated.

The other ground alleged, namely, that the acts on which the charge of making false returns is based were done by the petitioners in pursuance of the enforcement laws of the United States, is more to the purpose. The difficulty is an entire want of specification of the acts referred to. This may be owing to the fact that no specification of particular acts is made in the information. against them. The charge is simply that of falsely and feloniously uttering and publishing as true false and forged returns from the parish of Vernon, of

an election for presidential electors. What evidence will be presented in support of the charge does not appear. It may have no respect to the acts of the petitioners, done by them in pursuance of the acts of congress. The charge does not necessarily, nor presumptively, imply this. The petitioners can only conjecture that it will be so. In many cases there would not exist any doubt as to the specific acts complained of, and the defendants would have no difficulty in affirming the authority under which they were done. A revenue officer making a seizure, for example, and being prosecuted for taking the party's goods, could, with reasonable certainty, affirm what goods he was charged with taking, and could safely and with due certainty allege the authority by which he did the acts complained of, and thus be enabled to remove the cause to the federal courts. So if, in obedience to the enforcement act, an officer of election receives the votes of unregistered persons, not allowed to register on account of color, and is indicted for receiving unlawful votes, to wit, the votes of A., B. and C., specified by name, or even without such specification, he could very properly affirm what particular acts he was indicted for, and could have no difficulty in removing his cause.

But in the present case the charge is for publishing a false return of an election held at a particular place. The defendants cannot allege that the return was made under an act of congress. It was not. But they suspect that it will be attempted to make out against them the falsity charged, by proving certain acts which they did under the enforcement act. This, however, they can hardly know with sufficient certainty, and, if they do know it, they have not specified the acts or class of acts which they suppose to be the basis of the charge, so that the court may see with sufficient clearness that the case is one that is removable. It seems to me, therefore, that no sufficient case is presented for the removal of the canse. To be entitled to removal, the case must be shown to be within the category of removable causes. The general assertion of the party that it is so, or any general assertion that does not enable the court to see that it is so, is not sufficient. But the petitioners are not without remedy. If on the trial it should be attempted to sustain the charge by acts of the petitioners done by them in pursuance of the acts of congress, they can then claim the benefit of those acts; and, if refused by the court, can carry their case to the supreme court of the United States by writ of error. The application must be denied.

§ 3215. District attorney not required to prosecute.- Deputy marshals of the United States were indicted in a state court in Delaware for resisting certain special state officers, appointed to keep the peace at an election for representatives in the congress of the United States. Their cases were transferred for arbitrament and final decision from the courts where the indictments were pending to the circuit court of the United States, under the provisions of section 643 of the Revised Statutes. The state declined to take any part in the trial, and no counsel for the state appeared. The court held that the United States attorney had no right to prosecute the pleas of the state, and that he was to be considered as counsel for the defendants; and further, that the defendants were entitled to a trial, and therefore ordered a jury to be impaneled to give a verdict in the case. State of Delaware v. Emerson,* 8 Fed. R., 411.

§ 3216. Proof of justification.-On a petition for the removal of a cause from a state court, under section 7 of the act of March 2, 1833, the court ruled as follows: From a consideration of the facts and the arguments of counsel in this case, while I am of opinion that the homicide for which this petitioner is in custody was accidental, yet as the burden of proof in support of the facts alleged in his petition is upon the prisoner to show that justification which is contemplated by the seventh section of the act of 1833, I cannot satisfy myself that he has fully and affirmatively done so. This he must do before I have jurisdiction