I concur in the result. My views of the case are, however, so different from those of my associates that it may be helpful for me to state them. The purpose of section 31, speaking with reference to the present case, is to insure that persons accused of crime in state courts shall not be deprived of basic rights. Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075. The statute does not deal with questions of law arising in the course of a trial. It is designed to protect fundamental rights which have been disregarded in the prosecution itself. Commonwealth of Kentucky v. Powers, 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692; Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667. Proceedings under the statute (28 USCA § 74) must be instituted “before the trial or final hearing of the cause.” The statute applies to “any person who is denied * * * uny right secured to him by any law providing for the equal civil rights of citizens of the United States,” etc. An actual denial of such rights is the foundation of jurisdiction in the federal court and of the *345right to removal. Cases supra. Whether such denial is shown is for the federal court to determine.
The only question before us is whether the District Judge erred in his refusal to issue the writ of habeas corpus cum causa. Under the statute this writ is to be issued to obtain the body of the accused from the officers of the state court and thereby to complete the jurisdiction of the federal court over a case which is already before it, either by the filing of copies from the state court, or in the alternative way by docketing when copies have been refused. Until one or the other of these had been done clearly the writ ought not to have issued. There was no cause pending against the defendants in the federal court on which they could be held to answer. It is said by counsel for the defendants that the prescribed copies were in fact obtained and tendered to the clerk of the district court for filing; and that the clerk under instructions from the District Judge refused to accept them. Assuming this to bo so, it would not open the way to an application for habeas corpus cum causa. The writ does not operate to transfer the cause — which is done in the manner prescribed by section 31 (28 USCA § 74) - — but only to bring over the prisoner, and is not issued until the case has been entered in the federal court, nor unless the defendant is “in actual custody.” It seems to me therefore that the District Judge was clearly right in refusing to issue the writ.
This is sufficient to dispose of the case; but in such matters courts are strongly inclined, as Bush v. Kentucky, 107 U. S. 110, 1 S. Ct. 625, 27 L. Ed. 354, shows, to overlook deficiencies in the record and technicalities of procedure in order to get at the merits of the controversy. If it be assumed in favor of the petitioners that their application to the District Judge for the writ ought to be regarded as including by implication application for an order permitting them to file the copies which they say they tendered to the clerk — although that fact does not appear in the record — and that the, question as to the right of the petitioners to remove their case is before us, I still think that the District Judge’s action was correct. Before permitting the removal papers to be filed he had the right, and perhaps the duty, to examine the petition for removal addressed to the state court and ascertain whether it presented a substantial ground for removal. Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667. As has been pointed out, there is under the statute no right of removal unless the defendants’ civil rights have been violated in the state proceedings. A petition which did not allege facts showing such violation would not be ground for any action by the state court or by the federal court. Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Commonwealth of Kentucky v. Powers, 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692; State of Ohio v. Swift & Co., 270 F. 141 (C. C. A. 6). In my opinion no such violation of th6 defendants’ rights is shown on the face of their petition. The allegations of local prejudice, etc., state no ground for removal under this statute (cases supra); and the allegations that the petitioners are deprived of civil rights or constitutional rights because not permitted to waive a jury and be tried by a judge in the state court seem to me too clearly ill-founded in law to require discussion.