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July 19, 1949

WALL, Sheriff

The opinion of the court was delivered by: FORMAN

The petitioner, Julius Vance Harper, filed a petition for a writ of habeas corpus, alleging that he was in the custody of the Sheriff of Middlesex County at New Brunswick, New Jersey, under a warrant issued by the Governor of New Jersey, at the demand of the State of Alabama by reason of the petitioner's escape from confinement in that State.

The petition recited that his rights were violated at his trial for burglary in the State of Alabama and that after conviction and confinement in prison and in a prison camp he was subjected to cruel, barbaric and unusual punishment. It further alleged that if he is returned to complete the sentence his life will be in danger and that he will be subjected to further cruel and inhuman punishment.

 Counsel was appointed for him by the Middlesex County Court of New Jersey, but that court declined to act upon a petition for a writ which was submitted to it and directed counsel to make an application to this court.

 This court has jurisdiction in extradition proceedings where there is an allegation of transgression against fundamental rights guaranteed by the United States Constitution. This was settled in the case of Johnson v. Dye, United States Court of Appeals for the Third Circuit, 175 F.2d 250, 257, wherein the court stated: ' * * * the rule of exhaustion of state remedies does not apply where habeas corpus is sought to avoid extradition.'

 In compliance with the opinion in the Johnson case, the writ was allowed and on the return day the Sheriff of Middlesex County responded to it and produced the petitioner in court. Counsel, appointed as aforesaid, represented the prisoner. The court had directed that service should be made upon the Attorney General of the State of New Jersey of copies of the petition and writ with the request that he forward such copies to the Attorney General of Alabama. A Deputy Attorney General of New Jersey appeared at the time fixed for hearing and reported to the court that the Attorney General of Alabama had been notified pursuant to the court's direction, and had advised that the State of Alabama did not desire to appear at the hearing. *fn1"

 No evidence was offered on behalf of the State of Alabama, but the Deputy Attorney General of New Jersey was permitted to cross-examine the petitioner. The petitioner testified that in November or December of 1943 he was caught in the act of committing burglary in a private residence in Mobile, Alabama, by the police of that city after he had stolen five dollars in cash. After his arrest he was taken to the police station where he was questioned for many hours concerning his implication in other burglaries. He denied that he was implicated in other burglaries and insisted that this was his first and only theft. His interrogation was carried on by as many as five members of the police force at a time. He was threatened and beaten by the police and kept incommunicado for a number of days following his arrest. He was returned to the police station and again flogged. Thereafter a paper was submitted to him which he assumes contained a confession to a series of burglaries and he was told that unless he signed it he would continue suffer beatings. He was then 15 years of age and had stopped going to school in his birthplace in Georgia when he was in the third grade. He was unable to read and write. He testified nevertheless in order to save himself from further beatings he signed the paper without knowing its contents.

 After a number of months confinement in jail he was taken before the court. *fn2" His alleged confession was produced and a plea of guilty was entered for him. He was without counsel and was sentenced to 10 years in prison. Thereupon he was returned to jail and from there removed to the Alabama State Prison at Montgomery. Shortly after his arrival he was flogged because he could not eat the food that was offered to him for, as he states, it was contaminated with worms. He was made aware that other men were beaten in the prison and saw them after they were returned to their cells in a beaten condition. These beatings were administered in a room allegedly kept for such purpose, known in the institution as the 'dark room'.

 After 9 months of incarceration in the prison he was transported to the county work camp which, from the extradition papers, appears to have been located at Maplesville, Alabama. At this camp he was required to go out with the road gang and do maintenance work on the county roads. He testified that if the prisoners lagged in their work they were beaten by the guards and the warden of this camp. The food offered to the prisoners was, according to his testimony, unfit to eat. Petitioner stated that he was beaten many times and that this institution also had a 'dark room' where the beatings were administered by the warden and the guards. He further testified that at one time in order to demonstrate to him what would happen if he escaped from the camp, dogs were set upon him by the warden of the institution. He ran in fear from the dogs but they caught him and he was severely bitten about the legs before the dogs were called off. He displayed a number of scars about his legs which he stated marked the places where he had been bitten.

 He also exhibited a scar on his scalp which he claimed marked the place where he had been beaten over the head. He had experienced beatings with sticks, blackjacks and straps. Although he had asked for medical attention because he felt so ill he could not work, this was denied him and he was never permitted to see a doctor.

 In May of 1945 he made his escape from this camp, traveled to Tuscaloosa, Alabama, from where he continued on to St. Louis. Sometime in 1946 he enlisted in the Army and was honorable discharged therefrom as a so called 'hardship case' after seven months of service, because he claimed he could obtain employment which would enable him to secure larger funds to send to his mother and other members of his family in Georgia.

 He worked in laundries and hotels and finally decided to reenlist in the Army in 1948. He was accepted for such reenlistment and was serving in the Army at Camp Kilmer, Middlesex County, New Jersey in March of 1949 when the fact became known that he was a fugitive from justice in Alabama and he was then given an undesirable discharge. He was held pending the arrival of the Sheriff of Middlesex County who took him into custody on an extradition warrant outstanding against him from Alabama.

 The petitioner relies upon the decision of the United States Court of Appeals for the Third Circuit in the case of Johnson v. Dye, supra. That case turned upon the fact that the petitioner therein had been subjected to cruel and unusual punishment in derogation of his rights under the federal constitution of which by force of the Fourteenth Amendment, even a state could not deprive him. The full nature of the cruel and inhuman punishment was not set out in detail in the opinion but footnote 12 states: 'We shall not set out in this opinion the revolting barbarities which Johnson and his witnesses state were habitually perpetrated as standard chain gang practice. To perpetuate these atrocities in an opinion is to be unfair to the American scene as a whole and to reflect little credit on this generation for posterity. It is enough to state that leg-irons and most frequent beatings were among the 'minor' constant cruelties.'

 Here the chief complaints of the petitioner were the beatings which, according to his testimony, were often administered in the Maplesville road camp. He also complained of unfit food, his injuries when dogs were purposely set upon him, and his inability to obtain medical attention.

 The fact that the only testimony before the court is the story told by the petitioner, confessedly a convict and dishonest to the degree admitted by him, renders it suspect and subject to the closest scrutiny. Cf. People ex rel. Jackson v. Ruthazer, N.Y. Sup. Ct., 90 N.Y.S.2d 205. It is conceded that the brutality described by the petitioner is not of the degree which was ...

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