The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-03-13
Tried Three Times.

He has been tried three times by the
circuit court of Scott county and each
time found guilty once receiving a SEN
tence to death and twice a sentence OF
life Imprisonment, but the kentucky
court of appeals interfered in each IN
stance to prevent the execution Of the
verdict Last May the case was pre-
scented to Judge Cochran, sitting in the
United States circuit court for the East
ern district of Kentucky, and lie granted
a writ of habeas corpus ordering the re-
moval from the state court to his court.
The proceedings which terminated today
was instituted by kentucky to restore
the case to the state courts Hence,
practically the only question involved was
jurisdiction. Two modes of procedure
weres resorted to. one was appeal from
the order of Judge Cochran granting the
removal of his court, and another a petit
ton for writ of mandamus, directing
Judge Cochran to remand the case to the
state courts and restore Powers to the
custody of the sheriff of Scott county.
The removal to the federal court was Sc
cured on the ground that Powers had
been SO Disseminated against in the stale
courts as to deny him the equal protee-
ton of the law.
After quoting a number of decisions
Judge Harlan summed up the result as
followsi
No Right of Removal.
IN each of these cases it was dis
tinetly adiudged in harmony with pre-
yious cases that the words of section GAL
At rri.. Ia ri oh n removal unless
the constitution or the laws of the state
in which the original prosecution was
pending denied or prevented the enforce
ment in the judicial tribunals of such
state of the equal rights of the accused
as secured by any law OF the united
States. Those causes, as did the prior
ones. expressly held that there was no
right of removal under section 6fl where
the alleged discrimination against the
accused in respect of his equal rights,
was due to the Illegal or corrupt acts
of administrative officers unauthorized
by the constitution or laws of the state
as interpreted by its highest court. For
wrongs of that character the remedy, 1t
was held, is in the state court, and ulti-
natey in the power of this court upon
writ of error
Justice Harlan also discussed the con-
tentlon that there has been con-
splracy to take Powers life and that he
could not secure a fair trial He said;
Cites Official Misconduct.
1T is true that looking alone at the
case as made by the petition for removal,
the trials of the accused, make an exhibit
ton of misconduct on the part of the
administrative Officers connected with
those trials which may well shock all
who love justice and recognize the right
| of every human being accused of crime
| to be tried according to law. Further the
| case as made by the record. it must be
| conceded tends to show if it does not
| Justify the belief. that administrative Off
GERS having connection with the trial of
| the accused had 1t in mind at each trial
| to exclude from the jury so far as it
was possible to do SO, every person, how
| ever competent WHO belonged to the same
| political party as the accused"
Pointing out as a means FOR bringing
the case to the supreme court, the JUS
tice said;
Protected BY Federal Court
'Under this holding the accused is not
| deprived of opportunity to have his rights
| of what ever nature which are secured
| or guaranteed to him by the constitu-
| ton, or laws of the United States. fully
| protected by the federal court But it
| In refusing to quash tile indictment or
| the panel of the petit jurors, although
| the motion TO quash was based ON federal
| gorunds, cannot, under the laws of Ken
| lucky, be review by the court of APP
| peals. the highest court of that conf
monwealth If such be the law of KEN
lucky, as declared by the statutes and
by the court Of appeals of that common
wealth, then after the case IS disposed
of in that court by final Judgment, in
respect Of the matters of which under
the local law it may take cosnzance. a
writ OF error can run from this court TO
the trial court as the highest court of
| Kentucky. in which decision of the fed
| eral question could be had"
Dsposing finally of The two cases before
| the court, he remarked:
| eve are all of opinion that the order
| awarding the writ of habeas cum causa
| must be reversed with directions to set
| aside that order as well as the order
| docSetng the case in the circuit court
of the United States; also that the rule
| in regard TO mandamus must be made ah-
.olute the prosecution remanded to the
4 state court, and the custody of the ae-
| cused surrendered to The state author
! tiles"
Cincinnati. March l2.-When seen at the
| Newport Jail today Caleb Powers stated
| that he was greatly disappointed In the
decision of the supreme court. Powers
said:
Il am indeed sorry to learn that the SUI
| premc court has decided that II has no
| jurisdiction in ms case, \ fair trial is
all have fsked-all | ever wanted
/ am innocent of the charge against me and
expect to fight this case as long as 7
| live hut viii never be given fair
ltrisl in the Kentucky courts."