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December 15, 1967

UNITED STATES of America ex rel. Francisco GAINER, Petitioner,

The opinion of the court was delivered by: SHAW

 SHAW, District Judge.

 Petitioner seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. ยง 2241(c)(3). He was convicted after trial on the verdict of a jury in the Somerset County Court of conspiracy to commit robbery and of armed robbery. He had also been indicted for atrocious assault and battery with respect to which the jury returned a verdict of not guilty. He was sentenced to serve a term of not less than 4 nor more than 6 years imprisonment. He appealed to the Superior Court of New Jersey, Appellate Division, where his conviction was affirmed by a 2 to 1 vote. State v. Gainer, 93 N.J.Super. 258, 225 A.2d 608 (1966). On appeal to the Supreme Court of New Jersey the convictions were affirmed "substantially for the reasons expressed in the majority opinion of the Appellate Division." State v. Gainer, 48 N.J. 376, 225 A.2d 578 (1967). Petitioner has exhausted his State remedies.

 He filed his petition in this Court for a writ of habeas corpus while serving the sentence imposed by the Somerset County Court. Shortly thereafter he was released on parole. The fact that he has been released on parole does not deprive this Court of jurisdiction. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). Petitioner is presently in the custody of the New Jersey Board of Parole and he has standing to prosecute his petition for a writ of habeas corpus. The New Jersey Board of Parole is an agency of the New Jersey state government and, since the State of New Jersey is the real party in interest and named as respondent in the petition, it would serve no useful purpose to require the mere formality of amending the petition to make the Board of Parole a party. The interest of the State has been represented by the Prosecutor of Somerset County who raised no objection to the continuance of the proceedings initiated in this Court on the ground that the Board of Parole is not a party.

 It is petitioner's contention that an involuntary incriminating statement allegedly made by him to a police officer was erroneously admitted into evidence in violation of his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution. Petitioner raised this question on his State court appeals.

 When the unsigned statement was offered in evidence defense counsel made no objection and the statement was read to the jury. Petitioner took the stand and testified in his own behalf, denying his guilt and stating that the incriminating statement had been procured after lengthy interrogation, harassment, and physical abuse which began at the time that he was arrested. Petitioner stated in his direct examination at trial:

Q. And at police headquarters, were you questioned?
A. Yes, I was.
Q. Were you mistreated at that time?
A. That is right.
Q. What happened there?
Q. Why did you tell the troopers this?
A. Well, I felt then that I wasn't going to tell them nothing because of the beatings they gave me. I was still mad about it. It wasn't nothing I could do. I figured out, I will tell them anything to get off my back, you might say. They started cursing me. I told them, "Look, I don't know nothing." They asked me about the tire. I said, "Look, I had a flat tire. I just put the tire in the back there." In other words, I was telling them a big lie. Of course, they knew this. There was a fellow in plainclothes, heavy set, about forty, forty-one, something like that, who was doing the questioning to me down in the basement at this time. He got right up in my face, started to shouting, "You know, man, if you was a man, you would tell us all about this thing. We wouldn't have to take you through all this punishment." I told them, "Look, I don't know nothing." He says, "I am going to ask you just one more time. I want you to tell me the truth. Did you go in that gas station?" I says, "No, I didn't." He balled his fist up and hit me. I fell on the couch. All right, we are going to try it again. I am going to ask you the same question. I want an answer. I said, "Mister, you can hit the other side, too, if you want to. I didn't go in that gas station. I don't know nothing what happened in that station. I have nothing to do with it. I don't know nothing." So, this guy, he knocked me down again, went on about his business. I guess, he seen I wasn't going to do no talking. So, another fellow come in and was questioning me and said, "Look, this can keep up all day, if you want it to." As a matter of fact, at the time, had been something like close to ten or twelve hours - they were taking me through proceedings of wanting to ...

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