DRURY V. LEWIS, 200 U. S. 1 (1906)

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U.S. Supreme Court

Drury v. Lewis, 200 U.S. 1 (1906)

United States ex Rel. Drury v. Lewis

No. 126

Argued December 12, 1905

Decided January 2, 1906

200 U.S. 1


An officer and an enlisted soldier in the military service of the United States were indicted for murder and manslaughter and held for trial in a state court for having killed a citizen of the state who was not in the service of the United States, the alleged crime having been committed within the state, on property not belonging to, or under the jurisdiction of, the United States. On a writ of habeas corpus from a circuit court of the United States, it was contended that petitioners were seeking to arrest the deceased for felony under the laws of the United States, and that he met his death while attempting to escape, and as therefore the homicide was committed by petitioners in the discharge of their duties, the state court was without jurisdiction. On the hearing, there was a conflict of evidence as to whether deceased had surrendered or not, and it was conceded that, if he were not a fleeing felon, the ground for federal interposition failed. Held that

Page 200 U. S. 2

The circuit court properly declined to wrest petitioners from the custody of the state officers in advance of trial in the state courts. Ex Parte Crouch, 112 U. S. 178, applied.

Ralph W. Drury and John Dowd were indicted in the Court of Oyer and Terminer for the County of Allegheny, Pennsylvania, on two counts -- the first charging them with murder, and the second with manslaughter, in the homicide of one William H. Crowley, September 10, 1903. They were admitted to bail in the sum of $5,000 each, and having been subsequently surrendered, obtained a writ of habeas corpus from the Circuit Court of the United States for the Western District of Pennsylvania. The case on the hearing was thus stated by Acheson, J., holding the circuit court:

"On September 10th, 1903, Ralph W. Drury was a commissioned officer of the United States Army, of the rank of second lieutenant, and had under his command a detachment of twenty enlisted men, of whom John Dowd was one, stationed at Allegheny Arsenal, in the City of Pittsburgh, in Allegheny County, Pennsylvania, this arsenal being a subpost of Ft. Niagara, New York. From time to time before September 10, 1903, some copper down spouts and eve troughs had been stripped from some of the buildings on the arsenal grounds and the material stolen, and other depredations, such as the breaking of window lights, had been committed on the arsenal property. Lieut. Col. Robertson, the commanding officer at Ft. Niagara, on the occasion of an inspection of Allegheny Arsenal in July, 1903, had directed Lieut. Drury to use his best endeavors to stop the depredations, and to that end ordered him to establish a patrol of the guards day and night upon the arsenal grounds, and to apprehend and arrest any person or persons committing depredations on the arsenal property. Shortly before 10 o'clock on the morning of September 10, 1903, having received word that some persons were stealing copper from one of the buildings on the arsenal grounds, Lieut. Drury took John Dowd, then on guard duty, and another private soldier (each of the latter being armed with a rifle and ammunition), and, passing out of

Page 200 U. S. 3

the arsenal grounds through the gate on Butler Street, the three proceeded by way of Butler Street and Almond Alley towards the Allegheny Valley Railroad. Drury informed the two men of the reported stealing of copper, and instructed them to continue down Almond Alley and arrest any person coming from the arsenal. Drury himself left Almond alley at the corner of Willow Street, and went by Willow Street to Fortieth Street (which runs along, but outside of, the arsenal wall), and proceeded down Fortieth Street to its foot, where were congregated three or four half-grown boys or young men, among whom was William H. Crowley, aged about nineteen or twenty years. These persons fled in different directions when they saw Lieut. Drury approaching. Crowley ran from the foot of Fortieth Street away from the arsenal property in the direction of Forty-first Street, keeping on or near the Allegheny Valley Railroad. When he was about 100 yards from the arsenal wall, Crowley was shot by Dowd, who aimed and fired his rifle at Crowley. At the time of the shooting, Drury, Dowd, and Crowley were all off the ground belonging to the United States. Each one of the three then stood either upon a street of the city, on the Allegheny Valley Railroad, or on private property. The rifle ball struck Crowley's left thigh, inflicting a mortal wound, from which he died on the evening of the same day, September 10, 1903."

"Thus, far the facts are not open to dispute under the testimony. But as to the circumstances attending the shooting of Crowley, the evidence is conflicting, and leads to opposite conclusions of fact as one or other version of the affair given by the witnesses is accepted. Dowd testifies, and the petitioners have produced other evidence tending to show, that as Crowley fled, he was called on several times by Dowd, who followed him, to halt, with warning that, unless he halted, Dowd would fire; that Crowley did not halt, but continued his flight, and, to prevent his escape behind or through a lumber pile, Dowd fired, and that Drury did not order Dowd to fire, and was not connected with the shooting save by the fact that he ordered the

Page 200 U. S. 4

arrest of any person coming from the arsenal. On the other hand, two witnesses who were present (Mrs. Long and Miss Terwillerger) testify that, before the shot was fired Crowley stopped, turned around, and facing the pursuing soldier (Dowd), threw up his hand, said, 'Don't shoot, I will come back,' or 'I will give up,' and just then Lieut. Drury said 'Fire' and Dowd fired the shot that killed Crowley. The testimony of at least one other witness tends to corroborate the account of the transaction given by the two named women, as above recited. It is not for me to say whether or not the witnesses who have testified thus on the part of the commonwealth are mistaken."

"In view of all the evidence herein, should this court interfere to prevent the trial of the petitioners upon the indictment in the state court -- take the petitioners out of the custody of the authorities of the state and discharge them finally, without trial by any civil court in the regular administration of justice? This is the question which confronts me."

129 F.8d 3.

The court entered an order discharging the writ, and remanding petitioners to the custody of the warden of the jail of Allegheny County, and from that order this appeal was allowed and prosecuted.

Page 200 U. S. 6

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