Los Angeles herald., 1892-07-06
Judge Ross Denies the Marsh
Habeas Corpus Petition.
End of Proceeding Which Is of
Considerable Interest.
The Judge Reviews All the Points of the
Petitlon-A Decision Which Re-
views the Petition-The
Opinion in Full.


The case is one OF such Importance
that the judges opinion is given below
in full. 1t recites:
The petition for the writ sets forth
that Marsh is illegally restrained of his
liberty in this judicial district by the
sheriff of San Diego county, under and
by virtue of an order made on the 9th
day of June, 1892, by w. A. Sloane, as
justice OF the peace for San Diego town
ship, in San Diego county, California,
holding the said Marsh, together with
one Smallcomb, to answer before the
superior court of that county for the
crime Of kidnapping, and admitting them
to bail in the sum of one thousand dol
lars $4,000 each.
The proceeding in which the order
was instituted on the 1lth day OF April,
1892, by the filing, pursuant to the pro-
visions of the statute of California of an
affidavit by one Edward Crosthwaite in
which it was averred that on the 29th of
January, 1891, Smallcomb, Marsh and
Cruz, at Tia Juana,i in San Diego county,
California, "did wilfully and feloniously
forcibly steal and take affiant and carry
him into another country, to wit: the
republic of Mexico, without having
first established claim go to do ac-
cording to the laws of the United States
or of the state Of California" contrary
to the provisions of the state statute:
Upon the filing of the affidavit war
rant was issued for the arrest OF the paE.
ties against whomsthe charge was thus
preferred, and the matter coming on for
hn rf
testimony was taken upon which the
order holding them'to answer was based.
A copy of that testimony 10 annexed to
and made a part of the petition for the
writ, but for what purpose it is difficult
to understand, since its suficiency as
basis for the order is question with
which this court has nothing to do.
The petition AYERS that at all the
times mentioned therein George e. Gard
was, and still is, the duly appointed,
qualified and acting marshal for this
judicial district, and that at all OF the
said times Marsh was, and still is, one
of his duly appointed, qpalifed and act
ing deputies: that in order to enforce
the provisions of the act of congress
known as the Chinese exclusion act, and
prevent Chinese from unlawiully enter
ing the United States by crossing the
line between this country and the re-
public of Mexico, Marsh was for some
time stationed by the marshal On the
American side Of the line at Fla Juana,
In San Diego county, through which
village the line between the two coun-
tries passes; that after investigation
Marsh, reported to the marshal that
large number of Chinese were crossing
the lihe and entering ths.United States
CON ntrary to law by the aid of the aiore-
said Edward Crosthwaite, who, in
order to conceal his acts and
pu rposes in that behalf, pretend
I'd TO. be engaged in importing
ca tile and other stock from Mexico into
th United States; that the marshal,
be coming satisfied of thetputh Of these
re presentations, directed, Marsh to en-
10 rec the laws of congress- in respect to
ID exclusion of Chinese as we'll as to
sh payment of duties upon imported
,t ock,. and directed him toapply to the
Ii strict attorney for NEUTRALITY-SUSPICIOUS.
L be instructions of the then district at
10 rney, Mr.. Cole, given upon said appli-
60 ton, are annexed to and made part
Di the petition in the form OF an affi-
avis and are as follows: EHere is given
MIR. Coles affidavit.]
The petition for the writ AYERS that
the proceedings instituted against
Marsh in the court of the justice of the
peace of San Diego township were solely
for the purpose of obstructing the en-
forcement of the laws of the United
States and of crippling the administra-
ton of Justice in this judicial district;
that the aforesaid justice Of the peace,
together with F. j. Monahan. James
Russell, Edward Crosthwaite, johnson
Jones and J. E. Deakin, conspired to
that end, and in the aforesaid examina-
tion, Of Marsh and Smallconb before the
jussice's court of San Diego township,
caused false testimony to be given and
facts to be withheld, and subsequently
caused an information to be filed
by the district attorney OF San
Diego county in the superior court OF
that county against Marsh and Small
comb,. charging thenewith the commis-
sion Of the crime for which they had
been held to answer by the justice of the
peace, and on the 18th OF June, 1892,
caused an indictmentgto be tonnd by the
grand isary of the county against Marsh,
Smalleomb and certain other parties,
charging them with having unlawfully
eonspired to attena ptsfraudulently to in
Quc6 0De OudTl6S- Op0fldnAoI W SiNO
false testimony in the aforesaid criminal
proceeding before, the Justice of the
peace; and that to the information, as
we'll as to the Indictment, Marsh, al.
though denying the jurisdiction of the
state court, has been required to appear
and plead. Annexed to and made part
of the petition there are also number,
of other affidavits, the purpose of which
is to show that the aforesaid proceed-
ings against Marsh were the result of an
unlawful combination and without any
foundation in truth or justice. But these
are questions that this court cannot con-
slider; nor can it be doubted if the facts
be as claimed by the petitioner, the
courts of the state will deaA with the
guilty parties as law and justice de-
mand.
1t is not for this court to say what, if
any, laws of the state have been vio-
lated, or to determine whether the tes-
timony taken before the committing
magistrate justified the order holding
Marsh to answer the charge Of having
violated state statute. The one in
uuirv here to be made. is, whether or
not the alleged acts OF Marsh charged
as violation OF the state laws we're
done Sin pursuance of law Of the
United States" ERevised Statutes,
sec. 1853. If SO, such acts could not
constitute crime under any law of the
etate because authorized by a superior