Opinion
Francisco Agrait Oliveras, Acting Dist. Atty., Santure, Puerto Rico, Juan B. Fernandez Badillo, Secretary of Justice, Commonwealth of Puerto Rico, San Juan, P.R., for plaintiff.
Gerardo Ortiz del Rivero, San Juan, Puerto Rico, for defendant.
RUIZ-NAZARIO, Judge.
Petitioner in the above entitled case filed in this Court on August 5, 1957, a petition for the removal of this Criminal Action, pursuant to Sec. 1446(a) of Title 28 U.S.C.A. On August 8, 1957, the Commonwealth of Puerto Rico filed a motion in opposition to the petition for removal requesting that it be dismissed and the case remanded to the District Court of Puerto Rico, San Juan Section.
A hearing on said petition and motion to remand was held on August 16, 1957. Petitioner testified in his behalf and an affidavit of Lt. Commander Fuller of the United States Coast Guard attached to the Commonwealth's opposition and accepted as true by the petitioner, in which it is stated that on the night of the 25th of August 1957 petitioner was on liberty with no other military requirement than to return to his post at 7:50 A.M. on August 26, 1957, was admitted in evidence. On the basis of said testimony and affidavit the court holds that petitioner was not acting within the scope of his duty and under color of his status as a member of the Coast Guard of the United States at the time of the accident which gave rise to the criminal action against him by the Commonwealth of Puerto Rico, the subject of the removal herein and further holds that the other matters alleged in the petition are not meritorious legal grounds warranting removal of petitioner's cases to this Court. Snypp v. Ohio, 6 Cir., 70 F.2d 535, certiorari denied 293 U.S. 563, 55 S.Ct. 74, 79 L.Ed. 663; Lamson v. Superior Court, D.C., 12 F.Supp. 812; Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633.
It appears, therefore, that this case was removed improvidently and without jurisdiction to this court and pursuant to Sec. 1447(c), Title 28, U.S.C.A., it is hereby ordered that it be remanded to the court from where it was so removed.