This court shares the regret expressed by counsel that the record is in some respects so meager, and in other respects so confused, that it is impossible to ascertain what facts were before the inferior state court when it passed certain orders that are commented upon in argument. Some of those orders refer to affidavits and other documents that are not made in any form a part of the record. The difficulties in our way have been, in part, removed by the frank concessions of counsel on both sides, and we cheerfully acknowledge the aid we have received from them in our search through the record for the substantial questions to be determined. We may also add that our embarrassment has been increased by the consideration that the case is one of no small moment, involving, as it does, on the one hand, the life of a citizen, and, on the other, the question whether the judicial tribunals of a state have denied to a prisoner rights guarantied by the constitution of the United States. Whether the record before us shows such a denial we will now proceed to inquire.
John Bush, a citizen of African descent, was indicted in 1879, in the circuit court for Fayette county, Kentucky, for murder. Upon his first trial the jury, as was stated by counsel, being unable to agree, were discharged. At the next trial he was found guilty and was condemned to suffer death. Upon appeal to the court of appeals of Kentucky that judgment was reversed and a new trial was ordered for errors committed by the court of original jurisdiction: First, in neglecting to instruct the jury as to involuntary manslaughter, as distinguished from murder, the evidence being such as to authorize the jury to find the accused guilty of either offense; second, in the definition of malice given to the jury; third, in failing properly to instruct the jury whether the death of the deceased was necessarily or probably caused by the wound, or ensued from scarlet fever negligently communicated by her physician. Bush v. Com. 75 Ky. 268.
Upon the return of the case to the inferior state court the accused, as we infer from the record, filed a petition for its removal into the circuit court of the United States. That petition, we are informed by counsel, was filed May 24, 1880. It, however, is not in the record. We assume that it was based upon section 641 of the Revised Statutes of the United States, which authorizes, in general, the removal into such court of any criminal prosecution, commenced in a state court, for any cause whatever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where the prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The record, however, does state that copies of all the proceedings in the inferior state court were filed by the accused in the federal court, and that he was brought before the latter tribunal upon writ of habeas corpus addressed to the jailer having him in custody.
On the nineteenth day of October, 1880, the accused, by his counsel, moved in the federal court that the trial proceed. That motion was denied, and the response by the jailer to the writ of habeas corpus was adjudged to be insufficient. The reasons which controlled this action are set forth in the following order:
'And it appearing to the court, from the transcript of the record heretofore filed, that the indictment herein was found by a grand jury summoned under and in accordance with the provisions of section 1, c. 62, Gen. St. Ky., which exclude all other than white citizens from being summoned, or serving thereon, the court is of opinion that said law is a violation of the four-teenth amendment to the constitution of the United States, and orders said indictment quashed. The marshal of the court is ordered to return the said John Bush to Lexington, Kentucky, as speedily as possible, and there release him. He will, however, before setting him at liberty, notify the commonwealth's attorney; or, in his absence, the county attorney; or, in his absence, the county judge. This notice shall be in writing, stating the time and place of his release, and he will report his action to this court. The defendant excepts to so much of this order as requires his return to Lexington, Kentucky.'