Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1889-09-17

SAN FRANCISCO, September 16.-The
announcement that a decision would be
rendered in the habeas corpus of Deputy
Marshal Nagle, who shot and killed David
S. Terry last month, drew quite a number
of people to the United States Circuit Court
to-day. Justice Field was present, and
occupied seat in the jury box. Judge
Sawyer and Judge Sabin were on the bench.
After the decision discharging Nagle was
read. notice OF appeal to the United States
Supreme Court was given by counsel repre-
senting the State of California, and Nagle
was released on his own recognizance, the
bonds being fixed at $1,000.
The decision was very long, and was de-
livered by Judge Sawyer. 1t gives re-
view of the circumstances of the past year,
including threats of Terry and his wife,
which eliminated in the recent tragedy at
Lathrop. In commenting on the subject of
jurisdiction, Judge Sawyer says:
NO CONFLICT OF AUTHORITY.
"There is no conflict between authority
of the State and the United States. The
State in such cases is subordinate and Ma
tional Government paramount"
He continues: "There can be no doubt
that jurisdiction of the United States is not
affected by reason of location where the
main questions which the Court considers
are, first, was the homicide now in question
committed by the petitioner while acting in
the discharge of the duty imposed upon him
by the Constitution and laws of the United
States, and, second, was the homicide neces-
sary, or vas it reasonably apparent to the
mind of the petitioner, at the time and
under the circumstances then existing, that
killing was necessary in order to full and
complete discharge of such duty?'
NAGLE ONLY DID HIS DUTY.
The Court declares that the Marshal is
the peace officer, so tar as keeping the peace
In any matter wherein the sovereignty of
the United States is concerned, and he has
all the powers Of Sheriff as to such matters.
The Constitution provides for the Supreme
Court, and gives to the President the power
and duty of seeing that the laws are faith
fully executed. The Court further declares
that only a United States Marshal or his
deputy have performed the duty of protect
ing Judge Field, the use of State police be-
ing impracticable. as the powers OF the
Sheriff would have ended at the borders of
his county.
Judge Sawyer states: ''After mature
consideration we have reached the conclu-
sion that the homicide in question was COM
mitted by the petitioner while acting in the
discharge of the duty imposed upon him by
the Constitution and laws of the United
States"
FIRED NONE TOO SOON.
Judge Sawyer says he has seen some ad-
verse criticisms to the effect that Nagle fired
too quickly, and on this subject the decision
closed as follows: "Nagle, on the scene of
action, facing the party making the muir
derous assault, knowing by personal expert
ence his physical powers and his desperate
character, and by general reputation his
lifelong habit of carrying arms, remember
ing the sacred trust committed to his charge.
Nagle in these trying circumstance
was the party to determine when the su-
preme moment for action had come, and if
he honestly acted with reasonable judgment
and discretion the law justifes him, even if
he erred.
"But who will have the courage to stand
up in the presence of the facts developed by
the testimony in the case and say he fired
the smallest fraction too soon. In his own
Judgment he acted under the trying condi-
tions surrounding him in good faith, and
with consummate courage, judgment and
discretion. The homicide was, in our opin-
ion. clearly justifsble in law, and, in the
forum of sound, practical common sense, was
-