about 200 yards further along the road, when they were again fired on from the underbrush with which the road was skirted. About 15 or 20 steps from the road was a cotton field, enclosed by a fence. The space between the road and fence was thickly covered with underbrush, and it was from this covert that the fire upon the revenue men was delivered. Jones, who was afterwards killed, was seen to fire, although only a part of his person was exposed. When he fired he was about 10 steps from the fence, and was seen to turn and run towards the fence. The fire of the party in the bushes was promptly returned by the revenue men. Seven or eight shots were discharged into the ambush. The officers then at once charged through the underbrush to the fence. Ratteree was found in the fencecorner outside the field, wounded in the arm and finger. Jones was seen to climb the fence and start across the field. He climbed the fence 15 or 20 steps from where Ratteree was lying. As Jones got down from the fence he fell forward on hi.s hands and knees. He got up and started across the field, ran 25 or 50 yards and fell again. He again got up and ran from 100 to 125 yards, and fell dead. One of the witnesses thinks he fell, in all, four times. Jones was found to be shot through the body, the ball entering his back and coming out at his breast. A double-barreled shot gun was found near him, both barrels of which appeared to have been recently discharged, and a pouch containing ammunition was found on his person. Two other persons disappeared in different directions. The claim on the part of the state is that as Jones was running through the fields, with his back to his pursuers, he was fired upon by them, and so received the fatal shot. This claim is supported by the evidence of Ross, who was in custody of the revenue party at the time, and by F. G. Suttles, who witnessed the occurrence from his house, 500 or 600 yards distant. The testimony for the defendants is to the effect that but few shots were fired after Jones crossed the fence, and these were aimed at the other persons, who were endoavoring to escape in other directions. One witness for the defence, and
BUTF. V. PORT.
he one of the defendants, testifies to firing by the revenue party at Jones after he crossed the fence. All the facts above stated, with the exception of those that relate to the firing upon Jones while he was crossing the field, are sworn to substantially by nine of the defendants. Whenever there is any contradiction of their evidence to these faets, it rests solely on the testimony of Jesse Ross, who is now in custody, charged with conspiracy with Jones, Hatteree, and others, to resist the revenue officers on the occasion when the homicide occurred. The material point on which Ross differs from the-other witnesses is whether Jones and his party, or the revenue posse, fired first. Ross swears that on both occasions the revenue men fired first. But, according· to his own statement, he was not in a position to observe accurately which party fired first, for on both occasions he was in the rear of the revenue party, which was scattered somewhat along the road, and the fire upon them came from the front. . Besides, the probabilities of the case are against the truth of Ross' statement on this point. I assume, therefore, and it was not seriously disputed by the prosecution, that the testimony of the nine witnesses, who are scarcely more interested in this inquiry than Ross, establishes the fact that Jones and his comrades, on both occasions, fired first. The charge against the defendants is murder. They do not deny the homicide, but aver that it was committed in self-defence; that it was, therefore, justifiable, and no crime. The duty of the court, upon this inquiry, is regulated by section 4738 of the Code of Georgia, as follows:' "The duty of the court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused; to require him to appear and answer before the court competent to try him, and, whenever such probable cause exists, it is the duty of the court to commit," The question for decision, then, is whether, upon the facts of the case, there is sufficient reason to suspect the guilt of the accused. Does probable cause for the charge against them exist? In my judgment the answer will d-epend upon v.S.no.3-9
the solution of another inquiry, and that is, where was ;ronel when he received the wound of whioh he died? If, as claimed by the prosecution, he was in the ootton field, having desisted from his attack upon the revenue posse, was fleeing from the revenue posse, and they, when all danger to them had passed, fired upon him, and shot him in the back and killed him, the accused should, in my judgment, be required to appear at the term of this court to await the action of the grand jury. If, on the other hand, he received the fatal shot while in the ambush from which he had fired upon the revenue officers, and at or immediately after the time of the discharge by himself and his comrades of their wea,pons at the revenue officers, it is perfectly.clear that there is no ground whatever for the charge of the murder to stand on. The evidence, in my judgment, establishes conclusively the latter hypothesis. The testimony of Suttles, one of the witnesses for the prosecution, and of Robert Bolton, one of the defendants, tends to show that Jones received .his wound at least as early as the tIme when he crossed the fence. Suttles says that Jones, from the time he crossed the fence, ran in a kind of a trot, and again, after he got up after his first fall, which was near the fence, he ran slowly and in a bent position. Bolton testifies that he saw Jones when he was within a few steps of the place where he had climbed the fence, and he appeared to be hurt and weak. But the conclusive evidence on this point is the following: The testimony for the prosecution showil that after his Illeath the clothing of Jones was removed from his person and his body carefully examined. He was found to be burt in 'but one place, and that was the wound from the ball which passed through his body. Besides this not a scratch could be found upon his person. At the place where Jones climbed the fence there was fresh blood on the top and second rails, and blood on the leaves and grass, both outside and inside the fence. The fact that the blood was there, and that the place where it was found was where Jones olimbed the fence, is as clearly established as any fact in the case. The oonolusion is, therefore, inevitable that Jones reoeived his wound, the one of whioh he died, outside the fence of
STATE V. PORT.
the cotton field, and, at the very furthermost, not more than ten steps from where he had stood when he fired his last shot at the revenue party. The strip of underbrush from which the party in ambush fired was not more than 10 or 15 steps wide, and filled the space between the road, in which the revenue party was moving, and the fence. Into this narrow strip of underbrush, where their assailants were hiding in ambush, the revenue officers, to the number of 8 or 10, fired their guns. Ratteree was hit and found in the fence corner. Jones was hit as he turned to retreat after firing his last shot. He was from his wound when he reached the fence. The whole thing occupied only a few seconds. If Jones had been found dead in the underbrush, or anywhere outside the fence, it seems to me that the charge of murder against the revenue officers would have been preposterous. The fact that after receiving the fatal shot he ran between one and two hundred yards does not change the case. No shot fired at him after he crossed the fence took effect upon his person. If the shots fired while he was crossing the field did not hit him, the persons firing them may, by that act, be guilty of some offence, but it certainly is neither murder nor manslaughter. An attempt was made to show that if Jones had been shot in the ambush it would not have been possible for him to run the distance he did before he fell and died. This attempt, in my judgment, signally failed. The proof that Jones was shot in the ambush is perfectly con· elusive, and outweighs any theory based on facts which are not shown to exist. The case, then, is this: Jones was fatally shot by a party of revenue officers, standing in the highway, while he and his comrades were in ambush and firing from cover on the revenue posse. The facts, in my judgment, so far from showing that there is cause to suspect the revenue officers of the crime of murder, show conclusively that they acted in self-defence,' and that the homicide was justifiable. It has been claimed by the prosecution that the arrest of Ross by the revenue offi.. eers was unwarranted and without authority. If this be conceded, yet his arrest was no concern of Jones and Ratteree'
and their comrades, and was no justification or excuse for their firing upon the revenue officers. But, in my view of the facts, his arrest was not unlawful. It is shown by the evidence, and there is no conflicting testimony on this point, that this band of five armed men, of whom Ross was one, met the revenue officers in the highway, where they were passing along in the discharge of their duty, and levelled their guns at them. That Ross and his comrades knew who the revenue men were, and what their business was, the testimony does not leave in any sort of doubt. Their conduct, therefore, in thus confrq,nting, with arms, the revenue officers was a violation of law, and justified the arrest of the whole party. To bold that these revenue officers, one of wbom was also a deputy marshal, should have waited, before making an arrest for an offence of which they were eye-witnesses, until tbey could get a United States commissioner and swear out a warrant, is entirely to misconceive the power and duty of an officer of the law. Their duty was then and there to arrest, if they could, these men who had obstructed them in the discharge of their duty. The right of the citizens to resist an officer who is wilfully acting illegally, without authority, or in excess of his authority, is undoubted. I shall always uphold that right; it is essential to all free government. On the other hand, the right of the officer, acting in the line of his duty, to protect his person and his life from unlawful violence, stands upon · the highest grounds. In this case there was a party of 13 men, all bearing commissions as deputy collectors of internal revenue for the district in which this unfortunate tragedy occurred. They were required, by their duty and their orders, to go through this neighborhood. They were supposed to be protected by the majesty of the law and the authority of the United States. The revenue laws of the general government were, to say the least, of as great force in Campbell county, and in the vicinityof Red Oak station, as the laws of the state of Georgia. This posse had as clear a right under the law to break up illicit stills as the collector of Campbell county had to exact
the payment of state and county tax. For a citizen to fire upon them while in the discharge of their duty was as heinous an offence against law as it would have been to fire upon the tax collector of the county to prevent him from enforcing the payment of the county tax. These revenue officers knew their peril. 'They knew that they went to the discharge of their duty with their lives in their hands. They went armed, so as to resist unlawful violence. They were compelled a.t every haH to station pickets to prevent surprise. They were sober men. The testimony is that their orders were that not a drop of ardent spirits should be drunk by the party while on the expedition, and that the orders were obeyed. They proceeded in the discharge of their perilous duty ca.utiously and lawfully. Their guns were carried empty until occasion arose for their e. They were twice fired on from ambush while traveling the highway by concealed assailants, whose numbers they could not and did not know, standing in the public road, upon the property of the public, where they had a right to be, and where their duty required them to be. They returned the fire of their assailants, aiming generally at those points in th& thicket where they saw the smoke of their assailants' guns. This fire wounqed slightly one of the men in ambush, and wounded fatally another, and for this act the court is asked to say that there is probable cause to believe that these officers were guilty of the crime of murder. I am not of that opinion. In my judgment, they fired the shot by which the unfortunate and misguided Jones was killed strictly in self-defeMe. They ought, therefore, to be discharged from cuitody, and it is lie ordered.
(nutrict Court, D. Oregon. June 12, IS80.)
L FRAUDULENT CONVEYANCE-JuDGMENT-LIEN.-A judgment Is not a lien upon land previously conveyed in fraud of creditors, where the operation of the lien is limited by statute to .. all the real property of defendant," "from the date of the docketing of the judgment." 2. BANKRUPTCy-PARTNERSHIP DEBTS-INDIVIDUAL DEBTS-REV. ST. H 5075, 5121.-Under the Bankrupt Act, (lwv. St. §f 5075, 5121,) the property of a partnership is to be first applied to the payment of partnership debts, and the property of each member thereof to the payment of his individual debts.
In Bankruptcy. Petition to apply certain assets in payment of individual debts. Erasmus D. Slw.ttuck, for assignee. Charles H. Woodward and William W. Page, for judgment creditors. DEADY, D. J. On July 19, 1877, Levi Estes and Charles M. Carter were by this court adjudged bankrupts, both as partners constituting the firm of "Estes & Carter," and as individuals. On May 4, 1876, Estes was the owner of the undivided one-half of lots 3 and 4, in block 39, in this city, and being insolvent conveyed the same, subject to a mort. gage thereon of , to William H. Cole, with intent to hinder, delay and defraud his creditors. On December 22, 1879, the circuit court for this district, in a suit brought for that purpose by the assignee of the bankrupts against said Cole, gave a decree setting aside and annulling said conveyance as fraudulent. Afterwards, the assignee, upon the order of this court, sold the property free from all liens, if any, except that of the mortgage aforesaid, for the sum of $7,600. Claims amounting in the aggregate to $19,498.19 have been proved against the joint estate of the partners and the individual estate of Estes-$7,540.06 unsecured, $836.15 arising upon judgments aga,inst the latter; and $6,760.16 unsecured, and $4,361.82 arising upon judgments against the partnership. Besides these, claims amounting to $2,836.15, but secured by mortgage upon other property, have been