Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-04-04
Decision Of Judges Ballard and EN-.
mons, Of the United States Cir
cult Court, Delivered
Yesterday.
The Application by State AttOrney-Gen-
eral Heiskell that the Prisoners
be Turned Over to the
State Refused.
Previous Decision Of Judge Ballard
Sustaining the Demurrer-Opin-
ion Of a Lawyer Upon
the Discrepancy.

| In the United States court yesterday
J3dge Ballard delivered quite lengthy
verbal opinion upon the question argued
the previous day, and reported in the
APPEAL, which was an application of
Attorney General Heiskell in behalf Of
the State of Tennessee, that the Gibson
county prisoners be released from the
custody of the Federal court, because
they were indicted under the State law
and held to bail. The application was
refused, upon the ground that these per-
sons could not be considered in the ac-
tual custody of the State when arrested
under the process of the United States.
1t was clearly stated that if they were
in Jail in actual custody of the sheriff of
the county, Federal authority would
not reach them so as to produce them
for trial in this court; but as they were
only to appear in the State court this
did not constitute such a custody as
would prevent their arrest on Federal
process. The opposite ground was taken
by way OF argument by Attorney.Gen.
eral Helskeli, whU argued tho question
quite forcibly. Judge Emmons requested
that no report be made of this opinion,
as neither he nor Judge Ballard had it
in writing. Judge Ballard, in deliver
ing the opinion, said that not till then
did he know such duty would be as
signed to him. Judge Emmons said he
fully concurred in what had been said
by Judge Ballard. The question of sew
erance of trial will be decided to-mor-
row. The case was brought up last Fri
day, on q motion for a severance of tri-
al, when the attorney general for the
State of Tennessee made the application
oh ufo hn sex l,
importance to the public, we herewith
present the opinion of Judge Ballard,
sustaining the demurrer, in the case of
these prisoners, at previous term of the
court:
The following is the opinion Of Judge
Ballard to the demurrer to the indict-
ment against the Gibson county prison.
ers and on the felony questions present.
ed:
United States VS.. ]. p. Hale ct al.
The ground upon which I sustain the
demurrer to the first, second, third and
fourth counts of the Indictment is that
"neither the right to life nor the right
not to be deprived thereof, without due
process OF law" is q right granted or Sc
cured by the constitution or laws of the
United States. The fifth amendment of
the constitution Of the United States
does guarantee that q person shall not
be deprived of his life by the United
States without due process of law, and
the fourteenth amendment does declare
that he shall not be deprived Of it by a
State without like process; but neither
the one nor the other amendment, nor
any clause Of the constitution, attempts
to guarantee any person against depriva-
tion OF life by private persons. The only
guarantee we have against such de-
privstlon Except in places subject to
the exclusive jurisdiction of the United
Statesl is to be found in the laws Of the
several States. -Ther allegation in the
several counts that the accused "con-
spired to deprive certain persons Of Az
rlcan descent Of their livesu "on &C.
count OF their race" does not make the
counts any better. 1t is no more an Of
fense against the United States to de.
prive one OF African descent' of his
life, ION account Of his race" than il la
to deprive a Caucasian of his. on &C.
count OF "his Tace,n and it is no more
an offense against the United States to
deprive one of his life on account of his
race than il is from the motive OF hatred,
revenge, or other motive which ordina-
rily prOvokes crime. think the fifth
and sixth counts bad, because they do
not show that the persons against whom
the defendants are alleged to have COM
mitted crime with intent to prevent
them from removing certain causes
then depending against them in the
State court to the circuit court Of the
United States, had in fact any right to
remove their causes to the circuit court
Of the United States. They therefore do
not show that it was possible the crime
could have been committed for the mo-
tive alleged. do not doubt that it is
competent for congress to make it q
crime for persons to conspire TO prevent,
by threats, assaults, or other means, any
citizen from removing or attempting to
remove a cause depending in State
court to the circuit court of the United
States, and perhaps such conspiracy is
q crime within the meaning of the stat
ute on which the present indictment is
founded. But when it Is alleged, as IL is
here, that the party had the right to re-
move, and that the conspiracy was to