The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-09-17
TERRY'S SLAYER RELEASED.
1t Is Held that Nagle's Action Was Justifable
and that Federal Law Has Jurisdiction.

SAN FRANCISCO, Sept. l6.-Judge Sawyer,
in the United States Circuit Court. this
morning, rendered decision in the habeas
corpus case of Deputy Marshal David
Nagle, and discharged Nagle from custody.
A bill of exceptions filed by counsel for the
State was allowed Oy the court, and, pend
ing an appeal to the United States Supreme
Court, Nagle was ordered released on his
own recogn1zance. with bonds fixed at
$1,000.
Justice Field was present, and occupied
a seat in the jury-box. Judge Sawyer and
Judge Sabin were on the bench. The de-
cision was very long, and was delivered by
Judge Sawyer. 1t gives review of the
circumstances of the past year, including
threats of Terry and his wife, which cul-
minated In the recent tragedy at Lathrop.
In commenting on the subject of .jurisdic-
flict between authority of the State and the
United States. The State in such cases is
subordinate and national government para
mount" tie continues: There can be no
douDt that jurisdiction of the United States
the main questions which the court con-
siders are. first. was the homicide
now in question committed by the petition
er while acting in the discharge of
the duty imposed upon him by the COnsti-
tuition and laws of the United States; and,
second, was the homicide necessary. or was
1t reasonably apparent to the mind of the
petitioner, at the time and under the cir
cumstances then existing. that killing was
necessary In order TO full and complete
discharge of such duty? The court declares
that the marshal is the peace officer. so far
as Keeping the peace In any matter wherein
the sovereignty of the United States is
concerned. and he has all the powers of a
sheriff as to such matters. The COnstitu-
tion provides for the Supreme Court. and
gives to the President thepower and dut v
of seeing that the laws are faithfully exc
cuted. The court further declares thatonly a
United States marshal OF his deputy could
have performed the duty Ofpr0tecting Judge
practicable, as the powers of the sheriff
would have ended at the borders Of his own
county"
Judge Sawyer states: "After mature con-
siderati0n we have reached the conclusion
that the homicide IN question was commit
ted by the petitioner while acting in the
discharge OF the duty imposed upon him by
the Constitution and laws of the United
States"
Judge Sawyer says he has seen some ad-
verse criticism. to the effect that Nagle fired
too quickly, and on this subject the decis-
ion closed as follows: 'Nagle, on the scene
of action. facing the party making the
murderOus assault. knowing by personal
experience his physical powers and his des-
perate character, and by general reputation
his lifelong habit of carrying arms,
his readiness to use them, and
his angry murderous threats, and seeing his
demoniac looks, his. stealthy assault from
behind. and remembering the sacred trust
committed to his charge, Nagle, in these
trying circumstances was the party to de-
termine when the supreme moment fo1
action had come. and if he honestly acted
with reasonable judgment and discretion
the law justities 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 of second too soon? III
his own Judgment he acted under the try
ing conditions surrounding him in gool
ment and discretion The homicide was. il
our opinion, clearly justifiable in law anG
in the forum of sound, practical common
sense was commendable."