Page:Federal Reporter, 1st Series, Volume 3.djvu/128

6TATB V. PORT. 131 �ers ? It îs insisted by counsel for the slate of Georgîa that a eriminal proseeution cannot be considered as commenced until indictment found. I have been able to discover no solid ground for this claim. An affidavit charging the defendants with the crime of murder bas been made and filed by a com- petent person before a judicial oificer competent to act. The law makes it his duty to consider the affidavit, and to deter- mine whether its averments make it incumbent on him to issue a warrant for the arrest of the parties accused. He bas per- formed that duty and decided judicially that a warrant should issue. He bas accordingly issued his warrant and directed it to the proper ofl&cers, requiring them to arrest the parties named therein. This warrant bas corne to the hands of the sheriff of Fulton county, who, in obedience to its mandate, bas arrested and taken into custody, and for six days bas beld in custody, and deprived of their liberty these defendants. To be able to say to them, when they apply for the removal of this proseeution, that their petition must be denied because no proseeution bas been commenced against them, the court must sbut its eyes to the conceded facta in the case. It would be hard to convinee a man who was taken away from his business and family, and beld in custody by a sheriff on a lawful warrant for his arrest, duly issued by a judicial officer upon an affidavit duly made before him, charging bim with an offence against the eriminal laws of the state, that no erim- inal proseeution had been commenced against bim. �Tbere is nothing in the words of section 643, or in its pur- pose, to warrant such an idea. Its object is to take from the state courts jurisdiction of ail cases that fall within its terms as Boon as they are commenced. �Now, when is a eriminal proseeution commenced ? Obvi- ously as soon as the warrant is issued. It bas been so beld in the case of Queen v. Brooks and Gibson, 1 Denison, 217, (5 British Crown Cases, 222.) This was an indictment upon 9 Geo. IV. c. 69. By the fourth section of the statuteit waa declared: "The proseeution for every offence punishable by indictment, by virtue of that act, shall be commenced within twelve calendar months afterthe commission of the offence." ����