Carico v. Wilmore

Paul, District Judge. “Officers who, by virtue of their offices, are conservators ofthe peace, have, at common law, the right.to arrest without warrant all persons who are guilty of a breach of the ]:>eace, or other violation of criminal law, in their presence.” 1 Amer. & Eng. Enc. Law, 734. The Revised Statutes of the United States provide as follows: “Sec. 3452. Every person who shall have in his custody or possession any goods, wares, merchandise, articles, or objects on which taxes are imposed by law, for the purpose of selling the same in fraud of the internal revenue laws, or with design to avoid the payment of the taxes imposed thereon, shall be liable to a penalty of five hundred dollars, or not less than double the amount of taxes fraudulently attempted to be evaded.” A violation of this statute would be a misdemeanor. Code Va. § 3879. If committed in the presence of a sheriff, the offender could be [199] arrested without a warrant. Muscoe v. Com., 86 Va. 443, 10 S. E. Rep. 534; and Davis, Crim. Law, 402. It is clearly proved that James Nelson, the deceased, and his brother, Reuben Nelson, who was with him at the time lie was killed, had been engaged only a few hours before in selling liquor unlawfully; that Reuben Nelson, when asked by the petitioner what he had in the keg which he was carrying, replied that he had “a little whisky.” These men having been engaged in selling whisky during the day, 10 or 15 miles from their borne, and acknowledging that they had whisky in a keg at the time they were accosted byr the deputy marshal, the fair presumption is that they had said whisky “for the purpose of soiling the' same in fraud of the revenue laws;” thus bringing their offense within the provisions of section 3452 of the Revised Statutes of the United1 States. It is further shown by the evidence that the petitioner had been informed, but a few minutes before he met the deceased and his brother,! that unlawful sales of liquor had been made that day at a cornshuckingi in that immediate neighborhood, and on the road which the petitioner was traveling with his prisoner, and that he would probably meet the men who were selling the liquor- that when he met the two Nelsons he supposed (the evidence shows that he was correct) that they were the-persons who had been selling the 'liquor unlawfully. So, seeing the keg which one of them carried, and being informed that it contained whisky, the petitioner was authorized to arrest these persons without warrant for a violation of the provisions of section 3452 of the Revised Statutes of the United States. The court is of the opinion that the offense described in that statute was being committed in the presence of the petitioner, and, if he had arrested the men who were doing it, he would have been performing his duty and acting in the line of his authority; for section 788 of the Revised Statutes of the United States provides that “the marshals and their deputies shall have in each state the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such slate may have by law in executing the laws thereof.” This statute invests the marshal and his deputies in this district with all the powers, common-law and statutory, which a sheriff and his deputies have in the state of Virginia; and, as we have already seen, a sheriff or his deputy in Virginia has power to arrest without warrant for an offense committed in his presence. In addition to the common-law powers of a sheriff in the state of Virginia, the Gode of Virginia (section 3988) makes it the duty of the sheriff' to give information of the violation of any penal law to the attorney for the commonwealth, -whose duty it is to institute a prosecution in such case. This duty imposed upon the sheriff' necessarily carries with it the implied power to investigate, inquire into, and ascertain if an offense has been or is being committed, in order that he may report the same to the proper prosecuting officer. The petitioner testifies that it was his purpose in stopping the Nelsons, and inquiring their names and what they had in the keg, to ascertain if they were violators of the law; and that, if they were, he might take the proper steps to have them [200] prosecuted. In view of the duty imposed upon a sheriff bjr the Code of Virginia, and the necessary and incidental power conferred by the imposition of that duty, and the marshal, by section 788 of Bevised Statutes of the United States, having the same power, the petitioner had a right, when he suspected the Nelsons of violating the revenue laws of the United States, to make of them, or other persons, all proper inquiries as to such violations of law; and being a conservator of the peace, like a sheriff, it was his duty to do so, and in doing so he was acting in the line of his duty. So the court is of the opinion that, under the facts ¡presented in this case, whether it u-as the purpose of the petitioner to arrest the deceased and his brother, or to make inquiries of them with a view of ascertaining whether they were or had been engaged in violating the internal revenue laws, he was acting within the scope, of his authority, and that the circuit court of the United States has jurisdiction of the prosecution instituted against him in the state court, and that the petitioner has a right to have the same removed into the circuit court for trial. Counsel for the petitioner claims that, under the evidence, he is entitled to an absolute discharge. .The court does not care at this time to enter into a discussion of the facts as shown by the evidence on which this demand is based. For the present it contents itself with saying that it deems it its duty not to discharge the petitioner. He will,be allowed bail in the sum of $1,000 to appear before the United States circuit court at its next regular term at Abingdon.