Kalteissen v. Stricker Brief for Petitioner-Appellant

    J. H X ID IH G U X L D  C O ., 1 3  F E A C E  S T . ,  » E W  B E B J S S W I C * ,  » .  J .

New Jersey Court of Errors and Appeals

In the matter of the application of 
S il a s  P a n m o re  and S era i P a n - 

more for writ of habeas corpus, 
discharging them from custody.

On appeal from the 
Court of Chan­
cery of New Jer­
sey.

Brief for Petitioner-Appellant

MR. K LEM M ER  K A L T E ISSE N ,
W

and
MR. W ILLIAM  D. D AN BERRY,

Both of New Brunswick, New Jersey,
Attorneys for Petitioner-Appellam.

MR. JO SE P H  STR IC K ER ,
Perth Amboy, New Jersey, 

and
MR. W ILLIA M  L. BRYAN,

Donaldsonville, Georgia,
Attorneys for Defendant-Respondent.



New Jersey Court of Errors and Appeals

In the matter of the application of 

S il a s  P a nm o re  and S era i P a n - 

m o r e  for writ of habeas corpus, 
discharging them from custody.

On appeal from the 
Court of Chan­
cery of New Jer­
sey.

B R IE F  FO R P E T IT IO N E R -A P P E LLA N T .

This is an appeal from an order made by his Honor, 
Edwin Robert Walker, Chancellor of the State of New 
Jersey, advised by Honorable John Backes, Vice-Chan­
cellor, remanding the body of Silas Panmore to the cus­
tody of J. Alday, Agent of His Excellency, Clifford 
Walker, Governor of the State of Georgia, and denying 
his application for discharge from custody.

The case was heard before the Vice-Chancellor on 
despositions and the pleadings; and the petition of the 
appellant, verified at length and supported by affidavits 
verifying it at length, by Serai Panmore, son of the ap­
pellant, and Estelle Panmore, shows that the appellant 
left the State of Georgia, because he feared violence to his 
person, and even loss of life at the hands of a mob pre­
judiced against him because of his race and color, at that 
place. The appeal is based mainly on the grounds that 
the order denies him that due process of law guaranteed 
him by the Fifteenth Amendment to the Constitution of 
the United States.

I.

The O RDER O F T H E  COURT O F CH ANCERY 
D E N IE S T H E  A P P E L L A N T  D U E P R O C E SS O F 
LAW , AND V IO LA T E S A M EN D M EN T F IF T E E N , 
TO T H E  U N IT ED  ST A T E S CO N STITU TIO N .

It has been conclusively shown in the Court below and 
uncontradicted by any legal testimony, that great prejudice



2

exists against the petitioner-appellant in the State of 
Georgia, demanding his return, where he is to be charged 
with the murder of an officer of the Law of the State of 
Georgia, of the white race; and that he will not be ade­
quately protected from violence while in the custody of 
that State; and that he is in grave danger of death or 
other injury if returned to the demanding State; and that 
because of such situation, this Court should discharge him 
from custody; and that to return him would be to deny 
him that due process of law which is contemplated by the 
Fifteenth Amendment, in that his life and liberty would be 
subjected to violence and outrage by persons assembled 
in mob, and without color of Law in the demanding 
State—all this, despite the fact that the authorities of the 
State of Georgia, would attempt to aid, as they have at­
tempted in numerous cases before without result, to pro­
tect persons in the status of the ptitioner-appellant from 
the fury of the mob.

The petitioner therefore believes that such decision as 
this Honorable Court shall make upon this point, will be the 
last legal adjudication that is likely to be made upon the 
facts; and it is respectfully shown that regardless of the 
guilt or innocence of the petitioner-appellant, Silas Pan- 
more, his life will be taken. The several floggings testified 
to by the petitioner, Serai Panmore, amply illustrate the 
tension and feeling of the mob in the Commonwealth de­
manding his return.

The question raised on this point has never been raised 
before in any of the Courts of this State, and was pre­
sented to the learned Vice-Chancellor who sat below, for 
the first time in the history of New Jersey.

An examination of the authorities outside this jurisdic­
tion, in order to establish some precedent for the Court 
below, and for this Court, has been almost barren of re­
sult. However, in the year 1909, an application was made 
to the Circuit Court of the United States for the Eastern 
District of Missouri, wherein among other things, race pre­
judice was set forth as a reason for the Court to discharge 
the petitioner from custody. The discharge from custody 
was denied by the Circuit Court, and an appeal was taken



3

to the United States Supreme Court, and in the opinion 
of the United States Supreme Court, delivered by Mr. 
justice Harlan, the Court had the following to say, with 
reference to so much of the said application as concerned 
race prejudice:

“The other question to be noticed is that raised by 
the following averments in the application for the writ 
of habeas corpus:

“ ‘Your petitioner further states that he is a negro, 
and that the race feeling and race prejudice is so 
bitter in the State of Mississippi (State seeking his 
return), against negroes, that he is in danger if re­
moved to that State, of assassination, and of being 
killed, and that he cannot have a fair and impartial 
trial in any of the courts of that State; and that to de­
liver him over to the authorities of that State, is to 
deprive him as a citizen of the United States, and a 
citizen and resident of the State of Mississippi, of the 
equal protection of the law.’

“ It is clear that the executive authority of the State 
in which an alleged fugitive may be found, and for 
whose arrest a demand is made, in conformity with 
the Constitution and Laws of the United States, need 
not be controlled in the discharge of his duty, by the 
Constitution, by race or color, nor by mere sugges­
tion—certainly, not one insupported by proof as was 
the case here—that the alleged fugitive will not be 
fairly and justly dealt with in the State to which it is 
sought to remove him, nor be adequately protected 
white in the custody of such State, against the action 
of lawless and bad men.”

( Albert Marbles vs. P. Creecy, Chief of Police of 
St. Louis, and Caspar J . Wolfe, Special Jailer, 215 
U. S. Supreme Court Reports, page 63.)

The Court hearing the application for discharge on the 
writ of habeas corpus, was entitled to assume, as no doubt 
the Governor of Missouri assumed, that the State demand­
ing the arrest and delivery of the accused, had no other 
object in view than to enforce its laws, and that it would 
by its tribunals, officers and representatives, see to it not 
only that he was legally tried without any reference to his 
race, but would be adequately protected while in the State’s 
custody against the illegal actions of those who might



4

interfere to prevent the regular and orderly administration 
of justice.

It certainly can be reasoned by implication from the 
above, that the main reason for the above language lies 
in the words “certainly not one insupported by proof as 
was the case here.” It is quite evident from this language 
that had the petitioner supported his petition by proofs 
such as are before your honorable Court, in the case at 
bar, to-wit: Floggings, threats, gatherings of mobs outside 
the home of the petitioner and the like, the decision of the 
Court in Marbles vs. Creecy, above, would have been in 
favor of the petitioner; at least the Court would have gone 
into the merits and considered the proofs.

The reasons argued against the Court below refusing 
to return the petitioner, Silas Panmore, to sure death in 
the demanding State, were, that if that Court establishes 
that precedent, negroes might flee from such States as 
Georgia and Mississippi, and others notorious for their 
lynchings and mob violence, and find a safe haven of 
refuge in such States and Commonwealths as would con­
form with the view your petitioner seeks to have this Court 
sustain; and as a consequence thereof, the criminal law 
in the several States would be completely set at naught. 
But that is a hasty conclusion. It is just as probable and 
logical that the effect of the Courts of the several States 
adopting the view we seek to have this Court sustain, 
would be that the people in those States who take the 
law in their own hands and set at naught, would be thus 
sharply brought to realize that the other States of the 
Union will not return a fugitive to people who rise in mobs 
agains the laws of their own State, and take the lives of 
the fugitives without due process of law.

There is certainly nothing in the Constitution of the 
United States, or of the State of New Jersey, which has 
any weight against the view your petitioner seeks to have 
this court adopt. The only purpose of returning the fugi­
tive to the demanding State is, that he may be dealt with 
according to the Laws of that State. When it becomes 
apparent to the Court and jurisdiction asked to surrender 
him, that he will not be dealt with according to the Laws



5

of that State, the Courts of the State from which he is 
demanded, will be certainly justified in not delivering 
him up.

The temper of the Supreme Court of the United States 
upon this subject, is evidenced by recent decision of that 
Tribunal, argued on January 9th, 1923, and decided on 
February 19, 1923, in a case which arose out of Kansas 
City race riots, and which opinion was rendered by a 
divided Court, Justice MacReynolds and Justice Suther­
land, dissenting. The case was heard on the application 
of Frank Moore, for a writ of habeas corpus, directed 
to E. H. Dempsey, Keeper of the Arkansas State Peni­
tentiary, and the facts can well be given in the following 
silibus:

“A petition for writ of habeas corpus which alleged 
that the trial at which petitioners were. convicted of 
murder, and sentenced to death, was held when public 
feeling growing out of a race riot was high, that the 
petitioners were represented by an attorney appointed 
by the court at the beginning of the trial, which lasted 
only three quarters of an hour, that the denial of a 
motion of a new trial based on those facts was affirmed 
by the highest court of the State, and the State Chan­
cery Court prohibited from entertaining an applica­
tion for habeas corpus, is sufficient as against demur­
rer, to show that petitioners were being deprived of 
their lives without due process of law, so as to entitle 
them to a hearing in a Federal Court.”

(Moore vs. Dempsey, 43 Supreme Court Reporter, 
Vol. 9, Advanced sheets, 265.)

This application was made of course to a federal court 
for a federal writ under the United States Constitution, 
but the United States Constitution is binding upon the 
state courts as well as upon federal courts; and it would 
seem to be a logical conclusion drawn from the decision 
in Moore vs. Dempsey above, that when a state court is 
presented with facts which show that the alleged fugitive’s 
life will be taken without due process of law in the de­
manding State, and no evidence is produced by the de­
manding State and submitted to the tribunal hearing the 
application, traversing such facts presented by the peti­



6

tioner, that by reason of such mob, and the silence on the 
part of those able to meet the case, the state tribunal hear­
ing the application is justified in assuming the facts to be 
true and sufficient; and if the facts be true and sufficient 
under the ruling of the United States Supreme Court in 
Moore vs. Dempsey above, it is respectfully contended 
that there remains nothing for the tribunal hearing the 
application to do, but to discharge the applicant.

The only essential element is whether or not the appli­
cant will be denied the equal protection of the law, and 
due process of the law. The respondents in this case 
have not produced any evidence to the Court below, by 
affidavit or otherwise, which shows that they have pre­
pared, and are ready to meet an emergency, and the testi­
mony of the petitioner stands unimpeached.

It may be argued that we are to assume that each State 
is capable of enforcing its own laws, and that the States 
are ready and willing to enforce them. This presumption 
in so far as it relates to the discrimination against certain 
classes of people in certain commonwealths in the United 
States, is at most, a fiction; because it is a well known 
fact that in many States in a specific geographical section 
of the country—whether because the State does not care 
to enforce its own laws against certain classes of people, 
or whether the State is unable to enforce its own laws 
against certain classes of people, is immaterial—the laws 
are not enforced.

That the State of Georgia is notorious for its lynchings 
and mob violence, is a matter over which this Court could 
take judicial notice, without any evidence. It is a matter 
of common knowledge to the people of this State, and one 
which this Court may take judicial notice of, that on 
April 22nd, 1921, Governor Dorsey of Georgia, addressed 
the following letter to the people of the State of Georgia:

“Atlanta, Ga.. April 22, 1921.

“To the Conference of Citizens Called to Meet This
Day at Atlanta:
A. The Negro Lynched.
B. The Negro held in peonage.



7

C. The Negro driven out by organized law­
lessness.

D. The Negro subject to individual acts of
cruelty.

“Under these four headings, in the following pages 
I have grouped 135 examples of the alleged mistreat­
ment of Negroes in Georgia in the last two years. 
Without design, or the knowledge of each other, Geor­
gians, with one exception, have called these cases to 
my attention as Governor of Georgia. The exception 
noted was the appeal of two Negroes to Washington 
for protection. Their appeal was forwarded to me, 
as Governor, with the request that I should act if I 
could do so, without adding to the danger in which 
the Negroes stood.

“ No effort has been made to collect cases. If such 
an effort were made, I believe the number could be 
multiplied.

“ In some counties the Negro is being driven out as 
though he were a wild beast. In others, he is being 
held as a slave. In others, no Negroes remain.

“ In only two of the 135 cases cited is the ‘usual 
crime’ against white women involved.

“As Governor of Georgia, I have asked you, as 
citizens having the best interests of the State at heart, 
to meet here today to confer with me as to the best 
course to be taken. To me it seems that we stand 
indicte'd as a people before the world. If the condi­
tions indicated by these charges should continue, both 
God and man would justly condemn Georgia more 
severely than man and God have condemned Belgium 
and Leopold for the Congo atrocities. But worse than 
that condemnation would be the destruction of our 
civilization by the continued toleration of such cruel­
ties in Georgia.

“ I place the charges before you, as they have come 
unsolicited, to me. I have withheld the names of 
counties and individuals, because I do not desire to 
give harmful publicity to those counties, when I am 
convinced that, even in the counties where these out­
rages are said to have occurred, the better element 
regret them, and I believe, furthermore, that the better 
element in these counties and the whole State, who 
constitute the majority of our people, will condemn 
such conditions and take the steps necessary to correct 
them, when they see and realize the staggering sum



8

total of such cases, which, while seemingly confined to 
a small minority of our counties, yet bring disgrace 
and obloquy upon the State as a whole, and upon the 
entire Southern people.

“The investigation and the suggestion of a remedy 
should come from Georgians, and not from outsiders. 
For these reasons, I call to your attention the fol­
lowing charges, together with a suggested remedy 
which you v/ill find at the end of the recital of cases.

“ (Signed) H ugh  M. D o rsey ,
“ Governor.”

The assumption that each State is capable of enforcing 
its own laws, and that the States are ready and willing to 
enforce them, at the most, must be held to be rebuttable, 
and not a conclusive presumption, because a state of a f­
fairs in one of the several States can well be conceived, 
where such a presumption would have to yield to facts; 
and it is respectfully urged that in the case at bar, the 
only facts before this Court are facts which tend to rebut 
this presumption, and to show that the State of Georgia 
for some reason or other, is either not willing, or not able 
to protect colored alleged fugitives from lynch law and 
mob violence in its jurisdiction.

The respondents did not go into the Court below and 
show any precautions that have been taken such as the 
requisition of militia and the like, to meet the alleged 
fugitive, to protect him while in the jurisdiction of the 
State of Georgia. Neither do they traverse the testimony 
of the petitioner and his witnesses, so that as the matter 
stands here his testimony must be presumed to be true 
and unmet.

The answer of the respondents is equivalent to the fol­
lowing : “We do not deny the facts set forth in your ap­
plication, and we refuse to meet them. We likewise re­
fuse to tell you what special precautions we have taken, if 
any, to safeguard the prisoner. We demand him as of 
right, and it is no one’s fear, save ours, what we do with 
him.” Stripped of all pompous phraseology, this is the 
answer of the State of Georgia, to the writ of habeas 
corpus allowed by the Court below.



9

It is earnestly contended that as an answer, it does not 
meet the situation. It is equivalent to a demurrer to the 
evidence.

Hence the facts against the respondents must be as­
sumed to be true, and the situation in Moore vs. Dempsey, 
before the Supreme Court of the United States on Feb­
ruary 19th, 1923, is met, and the petitioner should be dis­
charged.

If the view this petitioner seeks to have this Court lay 
down, is adopted by the courts of this State, it will like­
wise be followed in many other states, and bids fair to 
settle once and for all the whole lynching problem in these 
United States; and as a question of policy, will work to 
great advantage of the whole country.

II.
T H E  CO URTS OF NEW  JE R S E Y  H A VE T H E  

POW ER AND A U TH O R ITY  TO G IVE T H E  P E T I­
TIO N ER  A SUM M ARY H EA RIN G  ON T H E  
M ER ITS.

In the event that this Court fails to reach the con­
clusion of the petitioner and his solicitors on the first 
point above, your petitioner respectfully asks that this 
Court may be moved by the facts above which were 
urged for his release, in its discretion, to grant him an 
inquiry into the cause of his commitment, on a criminal 
charge, as provided by sections 22, 23 and 24 of the Com­
piled Statutes of New Jersey, page 2639, as follows:

“An Act for preventing injury or illegal confinement, 
and better securing the liberty of the people.”

Sec. 22 herein returned.

“ If it appears that the party has been arrested—that 
the Court or Justice before whom the party shall be 
brought on said writ of habeas corpus, shall immedi­
ately after the return thereof, provide to examine 
said return, and the facts as set forth therein, whether 
the same shall have been upon process, or commitment, 
for any criminal or supposed criminal matter or not.”



10

Sec. 23. Discharge or remand of the prisoner:

“That if any cause be shown for such imprisonment 
or restraint, or for the detention thereof, such Court 
or Justice shall discharge such party from the custody 
or restraint under which he is held; but if the party be 
not entitled to his discharge, and be not bailed, the 
Court or Justice shall remand him to the custody or 
place him under the restraint from which he was 
taken, if the person under whose custody he was, be 
legally entitled thereto; if not so entitled, he shall be 
committed by such Court or Justice to the custody of 
such other officer or person as by law is entitled there­
to.”

Sec. 24. Inquiry into the cause of commitment on crim­
inal charge. Taking evidence:

“That if it appears that the party has been arrested 
or committed for some criminal offense or supposed 
criminal offense, it shall be lawful for the Court or 
Justice, in his discretion, to inquire into the cause and 
grounds of the confinement or restraint of such party, 
and for this purpose may summon witnesses, take 
their depositions, and may by an order in writing, re­
quire of any person the production of all affidavits, 
documents and writings relative to the premises. And 
if upon such examination, it shall appear that such 
party is not entitled to his discharge, he shall be bailed 
or remanded in the manner directed in the next pre­
ceding section. When this course is taken, the party 
shall not be entitled to his discharge by reason of any 
informality or insufficiency in the original arrest or 
commitment.”

There is no question under these sections, but that the 
Courts of this State have the power and authority to in­
quire in their discretion, int othe cause and grounds of the 
confinement, and restraint of the alleged fugitive.

It is respectfully urged upon this Court, that the author­
ity given it by that section, in reality, provides for a Mag­
istrate’s hearing before a Supreme Court Justice, if that 
Court cared to hear the same in its discretion. Certainly, 
the fact that the life of the party in restraint is in grave 
danger of mob violence if returned to the demanding 
State, as has been shown in this application before the



11

Court below, should be enough to move this Court, 
in its discretion, to find out what really lies behind the 
case of the demanding State.

In the event that this Court should hold adversely to the 
prayer of the petitioner on the first point above, your 
petitioner respectfully requests that this application be 
transferred to the New Jersey Supreme Court, or some 
Justice thereof, according to section 24 above, to inquire 
into the restraint on the merits.

Your petitioner well realizes that he is relying on the 
sound discretion of this Court and the Supreme Court for 
a hearing. He is confident that this Court can have no 
doubt but that he firmly believes that his life and liberty 
are in grave danger of mob violence if returned to the de­
manded State, no matter what precautions the authorities 
of that State might take to safeguard him ; and that if his 
return were sought by one of the States where mob 
violence and lynch law are a rare thing, no such applica­
tion as this would be made to the Court. The reason 
urged upon this Court for the exercise of its discretion 
in granting this hearing, is the fact that the life of the 
applicant is in grave danger of mob violence if returned 
without such hearing.

In the event therefore, that the Court denies the first 
point on this brief, your petitioner humbly requests that 
this Court in its discretion, will grant him what he knows 
will be the last and only fair and impartial hearing that he 
will ever receive, by remanding him to the New Jersey 
Supreme Court or some Justice thereof, to be dealt with 
pursuant to section 24 above cited.

Respectfully submitted.

K LE M M E R  K A L T E ISS E N , 
W ILLIA M  D. D A N BERRY,

Solicitors and of Counsel with Petitioner.