The defendants plead in abatement the prior jurisdiction of the State of Tennessee as obtained through! the proceedings alleged in the plea in connection with their arrest and custody on a criminal charge under the laws of Tennessee.
[1-3] I assume that on the alleged facts the State court has, under the rules stated in Taylor v. Taintor, 16 Wall. 366, 370, 21. L. Ed. 287, and In re Johnson, 167 U. S. 120, 124, 17 Sup. Ct. 735, 42 L. Ed. 103, acquired a prior and exclusive jurisdiction over the defendants, with which no other court'may interfere. This is, however, primarily the right of the court itself, and not the personal privilege of the defendants, and may be either insisted upon or waived by that court. Beavers v. Haubert. 198 U. S. 77, 85, 25 Sup. Ct. 573, 49 L. Ed. 950; United States v. Dillin (6th Circ.) 168 Fed, 813, 821, 94 C. C. A. 337; Ex parte Marrin (D. C.) 164 Fed. 631, 637; United States v. Marrin (D. C.) 227 Fed. 314, 318.1 Nor in the case of a bailed defendant is the yielding of jurisdiction by the court of prior right defeated by the implied custody of his sureties; although they would be thereby exempt from further liability to produce him. Taylor v. Taintor, 16 Wall., supra; Beavers v. Haubert, 198 U. S., supra, at page 85, 25 Sup. Ct. 573, 49 L. Ed. 950.
[4, 5] I am of opinion, however, that this right of the prior court is one which extends merely to jurisdiction over the person of the defendant and not to the right of criminal prosecution; and that, even if it can ever be invoked by the defendant himself, it is nevertheless not ground for abating a subsequent indictment in another court— which may be returned without previous arrest or custody of the defendant — but goes at most to the validity and effect of the process under which it may be sought fo arrest him in the second case, and the right of the second court to proceed to his trial and sentence, that is, to those matters which relate to- the assertion of actual jurisdiction over the person of the defendant. See Stallings v. Splain, 253 U. S. 339, *491342, 40 Sup. Ct. 537, 64 L. Ed. 940. Thus in United States v. Wells, (D. C.) 28 Fed. Cas. 522, 524, No. 16,664, it was helcL that although the defendant had been improperly taken from the prior custody of the State court, the subsequent indictment returned against him in the Federal court should not be abated, but he should instead, be left to be dealt with by the State authorities.
I hence conclude that the demurrer to this plea in abatement should be sustained.
The question whether, hereafter, in the event prior jurisdiction of the State court is shown over the person of the defendants, this court may properly proceed with their trial merely because of lack of affirmative objection thereto on the part either of the State authorities or the sureties on Robertson's bail bond in the State court, or whether it should decline to proceed with the trial except upon affirmative evidence that either the State authorities or such sureties have affirmatively yielded jurisdiction to this court, is one which is not now determined. See in this connection: Ex parte Marrin, 164 Fed., supra, and United States v. Marrin, 227 Fed., supra; 15 Corp. Jur. 1166, citing Metcalf v. State, 57 Okl. 64, 156 Pac. 305, L. R. A. 1916E, 595, to the effect that a defendant released on bail in a State court is subject to arrest in a Federal court; also arguendo, United States v. Van Fossen (C. C.) 28 Fed. Cas. 357, No. 16,607, Wales v. Whitney, 114 U. S. 564. 5 Sup. Ct. 1050, 29 L. Ed. 277, Spring v. Dahlman, 34 Neb. 692, 52 N. W. 567, and 17 Corp. Jur. 441.
Nor is it intended to intimate that if Dismukes be in fact in the actual prior custody of the State authorities the Marshal would be authorized, unless he is surrendered by them, to take him from their custody for trial in this court. See United States v. Wells, 28 Fed. Cas., supra.
See, by analogy, tbe subsequent decision in Ponzi v. Fessenden, 258 U. S. 254, 42 Sup. Ct. 309, 66 L. Ed. — (March 27, 1922). Also, United States v. Lanza, 260 U. S., 43 Sup. Ct. 141, 67 L. Ed. —.