Brown v. Baldi Brief for Respondent in Opposition

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1954

No. 317 Misc.
EDWARD BROWN, 

Petitioner.
vs.

DR. FREDERICK S. BALDI, 
SUPERINTENDENT OF THE 

PHILADELPHIA COUNTY PRISON, 
Respondent,

and the
STATE OF GEORGIA, 

INTERVENOR
and PARTY RESPONDENT.

On Petition for a Writ of Certiorari 
to the Supreme Court of Pennsylvania

BRIEF FOR RESPONDENT IN OPPOSITION
EUGENE COOK,

Attorney General
ROBERT H. HALL,

Assistant Attorney General
E. FREEMAN LEVERETT, 

Attorney, Department of Law
ATTORNEYS FOR RESPONDENT

JAMES W. TRACEY, JR.,
Deputy Assistant Attorney General

LAMAR W. SIZEMORE,
Deputy Assistant Attorney General 
Of Counsel



I N D E X

Page
I. Opinion B e l o w ...................................................1

II. J u risd iction ........................................................ 1

III. Questions P re se n te d ......................................... 2

IV. Statutes and Constitutional Provisions
I n v o lv e d .............................................................. 2

V. Statement of the C a s e ......................................3

VI. Argument and Citation of Authorities . . 3
1. The Scope of Inquiry on Applications for 

Habeas Corpus to Combat Extradition 
Remains Limited Regardless of Allega­
tions of Invasion of Constitutional Rights 5

2. The Petition for a Writ of Certiorari 
Does Not Come Within Any Alleged Ex­
ception to the Case of Sweeney v. Woodall 20

VII. C o n c lu s io n ....................................................27
A pp en d ix ..........................................................28



TABLE OF AUTHORITIES
Cases Page
Ahrens v. Clark, 335 U.S. 188, 92 L. ed. 1898, 68 S. Ct. 1443 19 
Appleyard v. Massachusetts, 203 U.S. 222, 51 L. ed. 161,

27 S. Ct. 122_____________________________________ 10, 16
Biddinger v. Commissioner of Police, 245 U.S. 128, 62 L. ed.

193, 38 S. Ct. 41_________________________________  6, 8
Broomhead v. Chisolm, 47 Ga. 390________________________  25
Brown v. Allen, 344 U.S. 443, 97 L. ed. 469, 73 S. Ct. 397

(Reh. Den. 345 U.S. 946)_____________________________  20
Brown v. Baldi, 378 Pa. 504, 106 A. 2d 777_____________ 1, 21
Commonwealth of Kentucky v. Dennison, 24 How. 66, 16

L. ed. 171___________________________________________  7
Compton v. Alabama, 214 U.S. 1, 53 L. ed. 885, 29 S. Ct. 605 9 
Darr v. Burford, 339 U.S. 200, 94 L. ed. 761, 70 S. Ct. 587 19, 20 
Davis v. O’Connell, 185 F. 2d 513, (Cert. Den. 341 U.S. 941) 18 
Drew v. Thaw, 235 U.S. 432, 59 L. ed. 302, 35 S. Ct. 137 6, 9, 19
Dye v. Johnson, 338 U.S. 864, 94 L. ed. 530, 70 S. Ct. 146__ 13
Ex Parte Davis, 318 U.S. 412, 87 L. ed. 868, 63 S. Ct. 679___ 20
Ex Parte Fonda, 117 U.S. 516, 29 L. ed. 994, 6 S. Ct. 848.__  20
Ex Parte Hawk, 321 U.S. 116, 88 L. ed. 572, 64 S. Ct. 448____ 13
Ex Parte Marshall, 85 F. Supp. 771______________________  14
Ex Parte Reggel, 114 U.S. 642, 29 L. ed. 250, 5 S. Ct. 1148____ 9
Ex Parte Royall, 117 U.S. 241, 29 L. ed. 868 6 S. Ct. 734____  20
Gerrishv. State of New Hampshire, etal. 97 F. Supp. 527 13, 18
Harper v. Wall, 85 F. Supp. 783___________________________  14
Hyatt v. New York, ex rel. Corkran, 188 U.S. 691, 47 L. ed.

657, 23 S. Ct. 456____________________________________ 9
Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 52 L. ed.

121, 28 S. Ct. 58__________________________________ 6, 9
In Re. Strauss, 197 U.S. 324, 49 L. ed. 774, 25 S. Ct. 535____  9
Johnson v. Dye, 175 F. 2d 250_________________ 12, 14, 15, 22
Johnson v. Matthews, 182 F. 2d 677________  9, 15, 18, 22, 25
Lane v. Wilson, 307 U.S. 268, 83 L. ed. 1281, 59 S. Ct. 872_„_ 13 
Lascelles v. Georgia, 148 U.S. 537, 37 L. ed. 549,13 S. Ct. 687 12 
Louisiana, ex rel. Francis v. Resweber, 329 U.S. 459, 91 L.

ed. 422, 67 S. Ct. 374_______...________________________  13
Marbles v. Creecy, 215 U.S. 63, 54 L. ed. 92, 30 S. Ct. 32 10
Mooney v. Holohan, 294 U.S. 103, 79 L. ed. 791, 55 S. Ct. 340,

98 A. L. R. 406___ _____________ ____________________  20
Muncey v. Clough, 196 U.S. 364, 49 L. ed. 515, 25 S. Ct. 282

6, 9

u



Powell v. Alabama, 287 U.S. 45, 77 L. ed. 158, 58 S. Ct. 55_._. 26
Re. Wood, 140 U.S. 278, 35 L. ed. 505, 11 S. Ct. 738_______  20
Robb v. Connally, 111 U.S. 624, 28 L. ed. 542, 4 S. Ct. 544_._. 6 
Roberts v. Reilly, 116 U.S. 80, 29 L. ed. 544, 6 S. Ct. 291.. 6, 9
Ross v. Middlebrooks, 188 F. 2d 308______________________  14
Screws v. United States, 325 U.S. 91, 89 L. ed. 1495, 65

S. Ct. 1031__________________________________________  13
Sumner et al. v. Sumner, 117 Ga. 229, 43 S.E. 485________  30
Sweeney v. Woodall, 344 U.S. 86, 97 L. ed. 114, 73 S. Ct. 139

(Reh. Den. 344 U.S. 916)________  2, 5, 18, 20, 21, 23, 26
U. S. ex rel. Jackson v. Ruthazer, 181 F. 2d 588___________ 14
White v. Ragen, 324 U.S. 760, 89 L. ed. 1348, 65 S. Ct. 978.... 20 
Whitten v. Tomlinson, 160 U.S. 231, 40 L. ed. 406, 16

S. Ct. 297______________________________________  6, 9, 11
Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E. 2d 873________  26
Williams v. State, 192 Ga. 247, 15 S.E. 2d 219_____________  26
CONSTITUTIONS:
Federal:

Art. IV, Sec. II, Par. II____________________________  11, 28
Eighth Amendment___________________________________  13
Fourteenth Amendment________________________________  13

Georgia:
Art. I, Sec. I, Par. VII, IX, XI______________________ 24, 28

STATUTES:
Federal:

§3182, Title 18 U.S.C________________________10, 11, 28, 29
§2254, Title 28 U.S.C___________________________ 11, 13, 29
§1983, Title 42 U.S.C__________________________________ 13
§1985, Title 42 U.S.C________________________.._________  13

Georgia:
§50-101 ____________________________________________ 24, 30
§50-103 ____________________________________________ 26, 30
§77-366, As amended_________________________    30
§77-370, As amended__________________________________  31
§77-379, As amended__________________________________  31
§77-383, As amended__________________________________  31

MISCELLANEOUS:
47 Columbia Law Review, 470_______________..!___________ 9
Federal-State Conflicts in the Field of Habeas Corpus,

41 Calif. L. Rev. 483..._______...________...____________  19
Parker, Limiting the Abuse of Habeas Corpus, 8

F.R.D. 171__________ ____________________ ____________  11
Volume 2, Stanford Law Review, 174___________________ 9



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1954
No. 317 Misc.
EDWARD BROWN, 

Petitioner, 
vs.

DR. FREDERICK S. BALDI, 
SUPERINTENDENT OF THE 

PHILADELPHIA COUNTY PRISON, 
Respondent, 

and the
STATE OF GEORGIA, 

INTERVENOR
and PARTY RESPONDENT.

On Petition for a Writ of Certiorari 
to the Supreme Court of Pennsylvania

BRIEF FOR RESPONDENT IN OPPOSITION
I.

OPINION BELOW
The opinion of the Supreme Court of Pennsylvania 

is reported below as Commonwealth ex rel Brown v. 
Baldi, 378 Pa. 504, 106 A 2d 777, reh. den. August 19, 
1954. The opinion of the Court of Common Pleas No. 2, 
Philadelphia County, Pennsylvania, the trial court be­
low, is unreported. Both opinions appear in the ap­
pendix to the petition for certiorari.

II.
JURISDICTION

Jurisdiction is invoked by Petitioner under 28 
U.S.C., Section 1257(3).

1



2

III.
QUECTIONS PRESENTED

1. Whether or not in habeas corpus proceedings 
brought in the asylum state by a convict sought to be 
extradited, the court has jurisdiction to consider al­
legations that the prisoner has and will suffer cruel 
and inhuman punishment in the demanding state, par­
ticularly in view of this court’s decision in Sweeney v. 
Woodall (1952) 344 U.S. 86, 97 L. Ed. 114, 73 S. Ct. 
139, reh. den. 344 U.S. 916.

2. Do the allegations in the petition for certiorari 
to the effect that no relief is afforded in the demanding 
state come within any alleged exception to Sweeney v. 
Woodall, supra, particularly in view of a finding by 
the Supreme Court of Pennsylvania below that such 
relief would be available?

IV.
STATUTES AND CONSTITUTIONAL 

PROVISIONS INVOLVED
These are set out in the appendix, p. 28, along with 

extracts from the Rules and Regulations of the Geor­
gia State Board of Corrections.



3

V
STATEMENT OF THE CASE*

Respondent does not accept as accurate and com­
plete the petitioner’s statement of facts. For this 
reason, respondent deems it necessary to a clear under­
standing of the case to set forth the facts in chronologi­
cal order.

The petitioner was convicted of the charge of mur­
der in the April, 1937 term of the Bibb County, Geor­
gia, Superior Court and given a sentence of life im­
prisonment. He was placed in the Georgia Peniten­
tiary on June 2, 1937. He escaped on December 15, 
1937. He was recaptured in June, 1940 and escaped 
again in September, 1940, going first to Cincinnati, 
then to Detroit, and finally to San Francisco. Recap­
tured in August, 1947, he escaped the third time in 
January, 1950, to Lakeland, Florida, and afterwards 
to Philadelphia. On March 31, 1952, the petitioner 
was arrested in Philadelphia by agents of the Federal 
Bureau of Investigation on a charge of illegal flight 
from imprisonment in Georgia. He was turned over 
to the Philadelphia police April 16,1952 and committed 
to prison by a Magistrate to await extradition papers 
from the State of Georgia. On April 23,1952, the Gov­

* Counsel for the respondent were not served with a copy of the record 
filed with the Court and are advised by the Clerk of the Supreme Court 
of Philadelphia that in this type of proceeding he is unable to duplicate 
the pagination of the record as certified to this Court. Therefore, counsel 
for the respondent have prepared the above statement from the original 
papers, but are unable to furnish page references to the record as trans­
mitted to this Court. This is the third time within the past year that 
the State of Georgia has been called upon to respond without benefit of 
a duplicate of the record. This is all well and fine where the petitioner, 
due to poverty does not attach a copy to the petition, as required by 
Rule 21 (1), but where he does, it seems patently unfair to respondent 
not to be served with a copy of the record which would cost the peti­
tioner little extra. It would thus seem that so much of Rule 21 pro­
viding that service of copy of the transcript need not be made is subject 
to criticism.



4

ernor of Pennsylvania issued a warrant for his rendi­
tion to Georgia.

A few days after the issuance of the Governor’s war­
rant, Brown petitioned the Court of Common Pleas 
for the County of Philadelphia for a writ of habeas 
corpus alleging that he had been subjected, during his 
imprisonment in Georgia, to cruel and unusual punish­
ment in violation of his constitutional rights, and, if 
returned there, would again be subjected to such pun­
ishment. The State of Georgia intervened to challenge 
the jurisdiction of the Pennsylvania Court. Interven­
tion was granted, but Georgia’s motion to dismiss the 
petition and quash the writ was denied.

The petitioner gave a fantastic description of tor­
tures which he claimed were inflicted upon him dur­
ing the course of his imprisonment. The witnesses, in­
cluding the sister of a fugitive, testifying for the peti­
tioner as to the condition of Georgia prisons were them­
selves fugitives from Georgia awaiting extradition and 
had as much interest as the petitioner in the outcome 
of the case. The State of Georgia moved the Court for 
permission to take depositions of witnesses in Georgia 
for the purpose of refuting petitioner’s testimony. The 
grounds of Georgia’s motion were that the Pennsyl­
vania Court was without power to compel the attend­
ance of witnesses who would not voluntarily come, that 
the petitioner’s allegations covered many details and 
places and that the tremendous expense was beyond 
budgetary limitations and if allowed to testify by de­
position, the witnesses would testify in substance as in­
dicated by the affidavits attached to the motion. The 
Court denied this motion. Later the Assistant Director 
of the Board of Corrections of the State of Georgia ap­
peared in person as a witness and denied the petition­
er’s allegations. Acts of the Legislature of Georgia



5

were introduced together with the Constitution of the 
State and the rules and regulations of prison institu­
tions relative to the treatment of prisoners and rem­
edies available to them. No evidence was presented 
to the trial court in support of the petitioner’s con­
tention that relief in the Courts of Georgia would be 
unavailable. After hearing argument, the trial court 
dismissed the petition. The decision of the trial court 
was affirmed by the Supreme Court of Pennsylvania 
on June 4, 1954.

The petitioner now seeks certiorari in this Court on 
the ground that the Supreme Court of Pennsylvania 
decided this case contrary to the rule laid down by 
this Court in Sweeney v. Woodall, 344 U.S. 86, 97 
L. ed. 114, 73 S. Ct. 139.

VI.
ARGUMENT AND CITATION OF AUTHORITIES 

1. THE SCOPE OF INQUIRY ON HA­
BEAS CORPUS IN EXTRADITION PRO­
CEEDINGS IS A MATTER OP JURISDIC­
TION AND NOT DISCRETION.

It should be kept in mind that the present case pre­
sents a situation wherein a prisoner sought to be ex­
tradited has instituted habeas corpus in a court of the 
asylum state, and not merely an instance of where 
habeas corpus is brought in a federal court sitting 
within the state wherein incarceration exists or is 
contemplated. In the latter case, the question to be 
resolved would be simply whether or not the petitioner’s 
state remedies had been exhausted, whereas in the for­
mer, the question is one of jurisdiction under the 
Constitution and federal statutes.

This court has long held that the scope of inquiry on 
habeas corpus in extradition cases is restricted to a



6

consideration of whether the person demanded has been 
charged with a crime, whether he was in the demand­
ing State at the time of the alleged crime, and whether 
or not he is a fugitive from the justice of the demand­
ing State. Roberts v. Reilly, 116 U.S. 80, 29 L. ed. 544, 
6 S. Ct. 291; Whitten v. Tomlinson, 160 U.S. 231, 40 
L. ed. 406, 16 S. Ct. 297; Muncey v. Clough, 196 U.S. 
364, 49 L. ed. 515, 25 S. Ct. 282; Illinois ex rel. Mc- 
Nichols v. Pease, 207 U.S. 100, 52 L. ed. 121, 28 S. Ct. 
58; Drew v. Thaw, 235 U.S. 432, 59 L. ed. 302, 35 S. Ct. 
137 ;Biddinger v. Commissioner of Police, 245 U.S. 128, 
62 L. ed. 193, 38 S. Ct. 41.

Since interstate extradition arises under the Consti­
tution of the United States (Constitution Article IV, 
Section 2, Paragraph 2) and an Act of Congress (18 
U.S.C. 3182) the scope of inquiry in review of the 
action of the Governor clearly seems to be a Federal 
question. Robb v. Connally, 111, U.S. 624, 28 L. ed. 
542, 4 S. Ct. 544; Roberts v. Reilly, supra; Drew v. 
Thaw, supra.

The fact that the extradition proceedings in the 
instant case were brought under the Uniform Criminal 
Extradition Act does not alter matters, for as pointed 
out by the majority opinion of the Supreme Court of 
Pennsylvania,

“ No proceedings in a State court, statutory or 
otherwise, can conflict with, much less override, 
the Constitution and the laws of Congress there­
under, which are the supreme law of the land.” 
(Appendix to Petition for Certiorari, p. 21.)

No error is assigned on this holding, and under the 
rules of this court (Rule 23), this question is not open 
for consideration here.



7

If petitioner’s contention is allowed to prevail, it 
would ultimately result in permitting each asylum 
State in the Union to pass upon the legality of a fugi­
tive’s trial and punishment in every demanding State, 
since it requires little imagination to conclude that 
such a potent weapon of delay would surely be ex­
ploited to its maximum in a branch of the law where 
delay is countenanced so dearly and sought so relent­
lessly.

That such is not the law was definitely settled in 
1861 by this Court in the case of Commonwealth of 
Kentucky v. Dennison, 24 How. 66,16 L. ed. 717, where 
Mr. Chief Justice Taney made it clear that the duty 
of the Governor of an asylum state was purely a 
ministerial one. The Chief Justice abhorred the possi­
bility that one state might retry and redetermine ac­
cording to its own laws whether or not the demanded 
fugitive was guilty of a crime in the demanding state. 
He said:

“ The argument on behalf of the Governor of Ohio, 
which insists upon excluding from this clause 
(the extradition clause of the Constitution) new 
offences created by a statute of the State, and 
growing out of its local institutions, and which 
are not admitted to be offences in the State where 
the fugitive is found, nor so regarded by the gen­
eral usage of civilized nations, would render the 
clause useless for any practical purpose. For 
where can the line of division be drawn with any­
thing like certainty? Who is to mark it? The 
Governor of the demanding state would probably 
draw one line, and the Governor of the other state 
another. And, if they differed, who is to decide 
between them? Under such a vague and indefinite 
construction, the article would not be a bond of



8

peace and union, but a constant source of con­
troversy and irritating discussion. It would have 
been far better to omit it altogether, and to have 
left it to the comity of the States, and their own 
sense of their respective interests, than to have 
inserted it as conferring a right, and yet defining 
that right so loosely as to make it a never-failing 
subject of dispute and ill-will.”

The rule which makes extradition a ministerial func­
tion has been frequently restated by the Supreme Court 
from time to time over the years of this country’s his­
tory without deviation. This court has frequently held 
that in habeas corpus proceedings brought to combat 
extradition, the only questions open to inquiry are 
those which will determine whether the extradition 
papers are properly drawn and supported, and whether 
the proper individual is in custody. For example, in 
Biddinger v. Commissioner of Police, (1917) 245 U.S. 
128, 62 L. ed. 193, 38 S. Ct. 41, the court said:

“ This much, however, the decisions of this Court 
make clear: that the proceeding is a summary one 
to be kept within narrow bounds not less for the 
protection of the Liberty of the citizen than in the 
public interest; that when the extradition papers 
required by the statute are in the proper form, 
the only evidence sanctioned by this Court as ad­
missible on such a hearing is such as tends to 
prove that the accused was not in the demanding 
state at the time the crime is alleged to have been 
committed, and frequently and emphatically that 
defenses cannot be entertained on such a hearing 
but must be referred for investigation to the trial 
of the case in the courts of the demanding State.”

And again, in Mr. Justice Holmes’ famous opinion in



9

the case of Drew v. Thaw, (1914), 235 U.S. 432, 59 L. 
ed. 302, 35 S. Ct. 137, it was said:

“ When, as here, the identity of the person, the fact 
that he is a fugitive from justice, the demand in 
due form, the indictment by a Grand Jury for what 
it and the Governor of New York allege to be a 
crime in that State, and the reasonable possibility 
that it may be such, all appear, the constitutionally 
required surrender is not to be interfered with by 
the summary process of habeas corpus upon specu­
lations as to what ought to be the result of a trial 
in the place where the Constitution provides for 
its taking place we regard it as to clear for 
lengthy discussion that Thaw should be delivered 
up at once.”

And, see Compton v. Alabama (1909) 214 U.S. 1, 53 L. 
ed. 885, 29 S. Ct. 605; Ex Parte Reggel (1885) 114 
U.S. 642, 29 L. ed. 250, 5 S. Ct. 1148; In Re Strauss 
(1905) 197 U.S. 324, 49 L. ed. 774, 25 S. Ct. 535; 
Hyatt v. New York ex rel. Corkran (1903) 188 U.S. 
691, 47 L. ed. 657, 23 S. Ct. 456; Roberts v. Reilly 
(1885) 116 U.S. 80,29 L. ed. 544, 6 S. Ct. 291; Whitten 
v. Tomlinson (1895) 160 U.S. 231, 40 L. ed. 406, 16 S. 
Ct. 297; Muncey v. Clough (1905) 196 U.S. 364, 49 L. 
ed. 515, 25 S. Ct. 282; People of State of Illinois ex rel. 
McNichols v. Pease (1907) 207 U.S. 100, 52 L. ed. 121, 
28 S. Ct. 58; Johnson v. Matthews (1950) 182 F. 2d, 
677. See also Volume 2, Stanford Law Review, 174 
and 47 Columbia Law Review, 470.

Clearly these cases are part of the same pattern 
which was conceived not by any Justice of the Supreme 
Court nor by Congress, though it has been stated and 
implemented by each, but rather by the framers of 
the Constitution. They foresaw with surprising clar­



10

ity, perhaps sharpened by actual experience, that in­
terstate extradition was a delicate matter; the consti­
tutional provision is clear and so, indeed, is the extra­
dition statute (Title 18 U.S.C. §3182), which was 
originally enacted in 1793, and has remained basically 
the same until the present time.

The mandate of the Constitution is clear: Let each 
State decide for itself what acts shall be criminal and 
how it shall be determined; let every other State re­
spect that decision. Full faith and credit has as much 
meaning here as in any civil field of decision. As was 
said in Appleyard v. Massachusetts (1906) 203 U.S. 
222, 51 L. ed. 161, 27 S. Ct. 122,

“ A  faithful, vigorous enforcement of that stipula­
tion (the constitutional provision relating to ex­
tradition) is vital to the harmony and welfare of 
the State.”

The basis of jurisdiction in the proceeding in the 
court below is perhaps at the heart of the confusion 
surrounding the court’s decision. It should be empha­
sized that the basis of the court’s jurisdiction was not 
the Fourteenth Amendment nor the Eighth nor any 
part of the Constitution except Article IV, Section II, 
Clause II.

There were two basic obstacles to the acceptance by 
the court below of jurisdiction to try not only the issues 
constitutionally present on an extradition proceeding, 
but the due process provided by the judicial and penal 
system of Georgia as well:

THE SCOPE OF INQUIRY ON APPLICA­
TION FOR HABEAS CORPUS TO COM­
BAT EXTRADITION REMAINS LIMITED 
REGARDLESS OF ALLEGATIONS OF



11

INVASION OF C O N S T I T U T I O N A L  
RIGHTS.

Petitioner’s facile effort to cause the court to disre­
gard the rule limiting the scope of hearing upon an 
application for habeas corpus to combat extradition 
on the ground that his constitutional rights had been 
invaded by the demanding state did not present a novel 
question. The very cases which have delimited the 
scope of such inquiry, in large part, involve similar 
allegations of invasion of constitutional rights.

For example, in Marbles v. Creecy (1909) 215 U.S. 
63, 54 L. ed. 92, 30 S. Ct. 32, the petitioner alleged that 
should he be returned to the demanding state, he would 
not receive a fair trial due to racial prejudice, and 
would be inadequately protected against mob violence, 
while in Whitten v. Tomlinson, (1895), 160 U.S. 231, 
40 L. ed. 406, 16 S. Ct. 297, the petitioner alleged his 
custody to be a denial of due process in that the indict­
ment was irregular in named respects.

The bare allegation that a constitutional right has 
been violated by the demanding state is not sufficient 
to enlarge the scope of the hearing. See Parker, Limit­
ing the Abuse of Habeas Corpus (1948) 8 F.R.D. 171.

While 28 U.S.C.A. 2254 creates an exception to the 
rule of exhaustion of state remedies where “ there is 
either an absence of available state corrective process 
or the existence of circumstances rendering such pro­
cess ineffective to protect the rights of the prisoner,” 
neither the constitutional provision relating to extra­
dition (Art. IV, Section 2, Paragraph 2) nor the statu­
tory enactment (18 U.S.C.A. 3182) prescribe an ex­
ception to the jurisdiction of the courts in the asylum 
state, when passing upon applications for habeas 
corpus.



12

However, the ingenuity of the human mind is for­
ever vigilant to devise and contrive means whereby 
convicted fugitives might escape the just demands of 
society, and the case of Johnson v. Dye (CA 3rd 1949), 
175 F. 2d 250, presented one of the latest stratagems 
formulated in this never-ending quest for evading the 
long arm of the law. The theory of the cases presaged 
by Johnson was that if you tell a lie, and make it big 
enough, it is likely that sooner or later a credulous 
Judge will be found whose sensibilities will be so 
shocked, particularly where sectional prejudices can 
be exploited, that judicial restraint will be overcome1 
and the courts placed in the position of either ignoring 
the Constitution and laws, or seeking to discover nice 
distinctions and exceptions which ultimately have the 
same result.

Therefore, even though it was held as early as 1893 
(Lascelles v. Georgia, 148 U.S. 537, 37 L. ed. 549, 13 
S. Ct. 687) that the very purpose of the Constitutional 
provisions relating to interstate extradition was to 
destroy forever any vestige of the ancient right of asy­
lum, it is now sought to defeat that salutory purpose 
through use of the writ of habeas corpus.

In the Johnson case supra, a Georgia fugitive sought 
to be extradited from Pennsylvania brought habeas

1 The various aspersions east upon Georgia by several courts have 
been referred to elsewhere herein. The dissenting opinion in the 
Supreme Court of Pennsylvania below very well illustrates the point 
made here. This judicial tirade, hardly representative of that quality 
of judicial dispassionateness and temperance essential to intelligent 
inquiry, at various places compares Georgia to Nazi Germany (Petition, 
p. 23)and as being filled with swamps of prejudice (Petition, p. 29); to 
a Soviet-dominated country and its now standard institution, the salt­
mine (Petition p. 31). The learned justice also forsees that upon return 
to_ Georgia, a lynching mob will be waiting at the state line, and like 
King Harry’s men at Harfleur, “ stand like greyhounds in the slips, 
straining at the start,” ready to expedite petitioner’s “ departure from 
this vale of tears,” in much the same manner as was done a generation 
ago in the famed Leo Frank case. (Petition, p. 28).



13

corpus in Federal District Court sitting in Pennsyl­
vania, the petition alleging as grounds for relief a 
fantastic narrative of tortue which would compare 
favorably with the most lurid tales of Edgar Allan Poe, 
and which has subsequently come to serve as a model2 
petition for those possessed of less imaginative capabil­
ities. The Court of Appeals, construing this court’s 
decision in State of Louisiana ex rel. Francis v. Res- 
weber, 329 U.S. 459, 463, 91 L. ed. 422, 67 S. Ct, 374, 
384, as implying protection against cruel and inhuman 
treatm ent by the Fourteenth A m endm ent,3 
reversed the judgment of the District Court below 
denying the writ, the opinion declaring that the doc­
trine of exhaustion of state remedies did not apply to 
extradition (p. 256). This court granted certiorari 
and summarily reversed, citing Ex Parte Hawk, 321 
U.S. 114, 88 L. ed. 572, 64 S. Ct. 448. See Dye v. 
Johnson (1949) 338 U.S. 864, 94 L. ed. 530, 70 S. Ct. 
146. Since Ex Parte Hawk, supra, turned on the fail­

2 In Gerrish v. State of New Hampshire, et al (D.C. N.H. 1951), 97 F. 
Supp. 527, 529, the court noted that the petition there “ greatly relies 
upon Johnson v. Dye, since in the wording of his allegations, he frequently 
uses the exact words contained in the Johnson petition.”

3 Apparently the question as to whether the due process clause of the 
Fourteenth Amendment has absorbed so much of the Eighth as relates 
to the inhibition against cruel and inhuman punishment, has never been 
definitely decided, since this court expressly declined to pass thereon 
in the Resweber case, but for purposes of this case, we can assume that 
it does and still reach the result contended for here, since (1) the scope 
of inquiry on habeas corpus in extradition is a matter of jurisdiction, 
and precludes consideration thereof in the asylum state, and (2) the 
validity of petitioner’s conviction or sentence is not affected by what 
transpires thereafter. Where the sentence itself prescribes the “ cruel 
and inhuman” element, a different situation might exist for this would 
invalidate the entire proceeding, but where the alleged cruel punishment 
arises from actions of prison guards which constitute infractions of 
state law, the proper remedy would seem to be not a release of a con­
victed felon, but appropriate action under state law, or else complaint 
under the Civil Rights Statutes. 42 U.S.C.A. 1983 (Due Process) ; 42 
U.S.C.A. 1985 (equal protection). Under these latter statutes, unlike 
habeas corpus in federal court (28 U.S.C.A. 2254) petitioner would not 
even have to exhaust his state court remedies. Lane v. Wilson (1939) 
307 U.S. 268, 83 L. ed. 1281, 59 S. Ct. 872. For an example of a case 
where a criminal civil rights action has been successfully prosecuted 
against a Georgia sheriff for brutalities, see Screws v. United, States, 
325 U.S. 91, 89 L. ed. 1495, 65 S. Ct. 1031.



14

ure of a Nebraska convict, seeking habeas corpus in 
Federal Court in Nebraska, to exhaust available rem­
edies in the state courts in Nebraska, this court’s re­
versal of the Johnson case was generally construed as 
a holding on this ground.4

In United States ex rel Jackson v. Ruthazer, (CA 2d 
1950) 181 F. 2d 588, the Court of Appeals for the 
Second Circuit construed this court’s reversal in the 
Johnson case as requiring the exhaustion of state 
remedies only in the asylum state, but refused to over­
turn the New York Court’s determination on the facts 
that petitioner had not been subjected to the treatment 
alleged. Ross v. Middlebrooks (CA 9th 1951) 188 F. 
2d 308 took the same view as to exhaustion of state 
remedies, but decided that as a matter of comity, 
Georgia courts should be permitted to pass upon the 
alleged mistreatment.

In Ex Parte Marshall (D.C.N.J. 1949) 85 F. Supp. 
771, the court took cognizance of the Johnson case, but 
never reached a decision on the law, the court finding 
against petitioner on the facts, while in Haper v. Wall 
(D.C.N.J. 1949) 85 F. Supp. 783, the same court, ap­
parently forgetting that it was trying habeas corpus on 
extradition proceedings, and not merely habeas corpus 
in the demanding state for violation of constitutional 
rights, granted the writ, partially on the ground of 
cruel and inhuman punishment, but principally on the

4 After reversal of the judgment in the Johnson case by this court, 
the petitioner prosecuted habeas corpus to the Supreme Court of 
Pennsylvania and upon denial thereof, habeas corpus was then brought 
in Pennsylvania Federal District Court, that court denying the writ 
for failure of petitioner to apply to this court for certiorari to the 
Supreme Court of Pennsylvania. Johnson v. Dye, (D.C. Pa. 1950) 
94 F. Supp. 133. Subsequently, certiorari was applied for and denied. 
341 U.S. 912. Thereafter, habeas corpus was reopened in the Federal 
District Court in Pennsylvania, but pending disposal thereof, petitioner 
died. Although the cause of death is not known, in all probability, 
petitioner, like Hamlet, could not stand the strain of “ the law’s delays.”



15

ground that petitioner’s trial in the demanding state 
had been held so as to deny petitioner due process of 
law. The court relied upon Johnson v. Dye, supra, 
which at that time had not been reversed by this court.

In the well considered case of Johnson v. Matthews, 
(CA DC 1950) 182 F. 2d 677, the court, after noting 
that the extradition statute was enacted by Congress 
pursuant to a bitter controversy between Pennsylvania 
and Virginia, for the express purpose of making min­
isterial the duties of the asylum state, declared:

“ Habeas corpus is the proper process for testing 
the validity of the arrest and detention by the 
authorities of the asylum state for extradition 
purposes. But a petition for a writ for that pur­
pose tests only that detention; it does not test 
the validity of the original or the contemplated 
incarceration in the demanding state. The Su­
preme Court has established the scope of extradi­
tion inquiry and the issues which are presented by 
it. The state cases and other federal court cases 
upon the subject are myriad. In essence the rule 
is that the court may determine whether a crime 
has been charged in the demanding state, whether 
the fugitive in custody is the person so charged, 
and whether the fugitive was in the demanding 
state at the time the alleged crime was committed. 
“ The question before us is whether a court (either 
state or federal) in the asylum state can hear and 
determine the constitutional validity of phases of 
the penal action by the demanding state in respect 
to the fugitive or his offense. We think that it can­
not do so. Authorities, sound theory of govern­
ment, and the practical aspects of the problem all 
require that conclusion.



16

“ The problem is not merely one of forum non con­
veniens. It involves the interrelationship of gov­
ernments, both among the states and between the 
states and the Federal Government. The quoted 
provision of the Constitution is in the nature of a 
treaty stipulation between the states, and com­
pliance is a matter of agreed executive comity .. 
(Citing Appleyard v. Massachusetts (1906) 203 
U.S. 222, 51 L. ed. 161, 27 S. Ct. 122).

The Court was careful to distinguish between the 
function of habeas corpus in testing the legality of a 
prisoner’s detention in the state of incarceration, and 
the writ’s function when brought in the asylum state, 
on extradition:

“ Of course, appellant has a right to test in a 
federal court the constitutional validity of his 
treatment by Georgia authorities. But that test 
cannot come as a part of the constitutional pro­
cess of returning a fugitive to the state where 
he is charged. If this fugitive’s constitutional 
rights are being violated in Georgia, he can and 
should protect them in Georgia. Not only state 
courts but a complete system of federal courts are 
there.”

And again, at page 682:

“ But, if this appellant proved the facts he alleges 
in respect to the penal practices of the State of 
Georgia, he would not be entitled to an order of the 
federal District Court in this jurisdiction releasing 
him from a custody which is for extradition pur­
poses only. This District Court has no power to 
consider and determine the constitutional validity 
of executive or judicial processes of the State of



17

Georgia. Another court, not this one, has that 
power.”

Relative to the alleged unavailability of remedy in 
Georgia, the demanding state, the Court declared:

“ The argument pressed upon us on behalf of ap­
pellant is susceptible of reductio ad absurdum. A 
fugitive has neither more nor less constitutional 
rights than has an incarcerated prisoner. If the 
Georgia courts, state and federal, will not en­
force the Constitution as to returned fugitives, 
they will not do so as to prisoners already in the 
State. But the rule is settled that habeas corpus 
on behalf of an incarcerated prisoner lies only 
in the district of his incarceration. If that incar­
ceration be in Georgia, and if we assume, as we 
are urged to do, that courts in Georgia would not 
protect a prisoner’s rights, we would be compelled 
to conclude either that prisoners in Georgia cannot 
get protection or that the rule as to venue of habeas 
corpus does not apply to Georgia. The federal 
Atlanta penitentiary is in Georgia. If the federal 
courts there do not enforce the Constitution as to 
those prisoners, it would seem that the peniten­
tiary ought to be moved, lest a federal court in 
another jurisdiction, in which some federal official 
might be caught for service of process, order the 
release of those prisoners.”

Concluding, the Court again alluded to the grave 
considerations of policy which gave birth to the con­
stitutional and statutory provisions relative to inter­
state extradition, viz:

“ The chaos into which the enforcement of criminal 
law would be plunged by the doctrine urged upon 
us by appellant is as readily discernible now as it



18

was when the Colonies first made what is now the 
existing agreement. The case before us concerns 
Georgia. The next might concern Alabama. The 
question there might be whether casually attended, 
ununiformed laborers with chains attached to 
their legs, at work in the open air on country 
roads, are undergoing cruel and unusual punish­
ment. The next case might concern New York or 
Illinois, and the question might be whether serried, 
shaved and numbered robots in the monotony of 
gray walls, or in occasional solitary confinement 
in darkened cells on bread and water, are suffer­
ing cruel and unusual punishment. And so a 
pattern of opinion in this jurisdiction concerning 
the penal practices of all the forty-eight states 
would in time necessarily develop.”

This Court denied certiorari, 340 U.S. 828.

The holding in Johnson v. Matthews, supra, was 
approved and applied in Davis v. O’Connell (CA 8th
1950) 185 F. 2d 513, certiorari denied 341 U.S. 941, 
and in Gerrish v. State of New Hampshire (D.C. Maine
1951) 97 F. Supp. 527.

In Sweeney v. Woodall (1952), 344 U.S. 86, 97 L. 
ed. 114, 73 S. Ct. 139, rehearing denied 344 U.S. 916, 
the petitioner had exhausted all remedies available to 
him in the state courts of Ohio, the asylum state, in­
cluding application for certiorari to this court, and 
had brought habeas corpus in federal district court 
sitting in Ohio, alleging the now stereotyped tale of tor­
ture. This Court reversed the judgment of the Court 
of Appeals for the Sixth Circuit granting the writ. It 
was specifically pointed out in the opinion that both the 
Constitution and statutes contemplate the prompt re­
turn of a fugitive without an appearance of the de­



19

manding state to defend against the claimed abuses 
of its prison system, citing Drew v. Thaw, supra, the 
classic case defining the limited scope of inquiry per­
missible on extradition proceedings.

Again, we deem it of the utmost importance to call 
the Court’s attention to the distinction between the 
rule of exhaustion of state remedies— a rule which is 
applicable only when habeas corpus is brought by a 
state prisoner in federal court, and the scope of in­
quiry on habeas corpus in extradition proceedings, 
which is a matter of jurisdiction. That this distinction 
is of special importance here arises from the attempt 
of petitioner to interpret the Sweeney case as being 
based solely on the exhaustion of remedies doctrine. 
Assuming this premise, petitioner says that he has made 
out an exception to the rule, since the doctrine of ex­
haustion of state remedies has generally been con­
strued as a rule applied by the courts as a discre­
tionary 5 matter in cases where jurisdiction exists, but 
where, due to matters of policy arising from our fed­
eral-state relationship, its exercise is deferred. The 
rule of exhaustion of state remedies only comes into 
consideration where the court has jurisdiction to con­
sider a question; but where jurisdiction is lacking, as 
in the case of habeas corpus on extradition, the ques­
tion should not even be reached.

Since habeas corpus lies in behalf of a prisoner only 
in the district of his incarceration,6 * 8 habeas corpus in

5 At least, prior to codification of the exhaustion rule in 28 U.S.C.A.
2254, it was held to be a rule of discretion applicable in cases where 
jurisdiction existed. This was pointed out in Darr v. Burford (1950),
339 U.S. 200, 94 L. ed. 761, 70 S. Ct. 587, this court declaring that 
“ since habeas corpus is a discretionary writ, federal courts had authority 
to refuse relief as a matter of comity until state remedies were ex­
hausted” (P. 204) The several Courts of Appeals have differed as to 
whether the question is now (after 28 U.S.C.A. 2254) one of discretion 
or jurisdiction. See Federal-State Conflicts in the Field of Habeas 
Corpus, 41 Calif. L. Rev. 483, 490.

8 Ahrens v. Clark, (1948), 335 U.S. 188, 92 L. ed. 1898, 68 S. Ct. 1443.



20

the asylum state could only test the detention in that 
district. By a parity of reasoning, venue considerations 
would require that the legality of the detention in the 
demanding state be tested in that state, in the district 
wherein confinement is had.7

However, irrespective of what view one takes of the 
question with regard to situations where habeas corpus 
is brought in federal district court, the rule is not in 
anywise involved in this case, as the proceedings below 
were in Pennsylvania state court.

2. THE PETITION FOR A WRIT OF CER­
TIORARI DOES NOT COME WITHIN 
ANY ALLEGED EXCEPTION TO THE 
CASE OF SWEENEY  7 . WOODALL. 7

7 The evolution of the rule of exhaustion of state remedies, as it 
presently exists, supports this view, as none of the cases concerned 
extradition, but were simply cases wherein habeas corpus had been 
brought in federal court in the district of the state wherein the petitioner 
was imprisoned for the purpose of testing that imprisonment. In Darr 
v. Burford, supra, the development of the exhaustion rule was elaborately 
set forth. It was pointed out that in Ex Parte Royall (1886), 117 U.S. 
241, 29 L. ed. 868, 6 S. Ct. 734, it was held that notwithstanding a fed­
eral district court had jurisdiction to release a prisoner held under state 
process, prior to trial, such jurisdiction as a matter of discretion would 
not be exercised. Then came Ex Parte Fonda (1886), 117 U.S. 516, 29 
L. ed. 994, 6 S. Ct. 848, holding that habeas corpus wuold not be granted 
after conviction but before appeal in state court; Re Wood (1891), 
140 U.S. 278, 35 L. ed. 505, 11 S. Ct. 738 held that habeas corpus would 
not be granted where no appeal to this court had been taken from the 
highest court of the state; and lastly, Mooney v. Holohan (1935), 294 
U.S. 103, 79 L. ed. 791, 55 S. Ct. 340, 98 A. L. R. 406, established that 
not only must all direct relief afforded by the state be exhausted, but 
also all collateral remedies. Darr v. Burford, supra, itself definitely 
established that as a condition to seeking relief in federal district court, 
the applicant must first have applied to this court for certiorari to the 
highest state court. To this we may add the cases of White v. Ragen 
(1945), 324 U.S. 760, 89 L. ed. 1348, 65 S. Ct. 978, holding that where 
the highest state court denies relief without opinion, certiorari to this 
Court need not be taken as a condition precedent to relief in district 
court, as it will be assumed that the decision was based on a non-federal 
ground, as to which certiorari would not lie anyway, and Brown v. Allen 
1953), 344 U.S. 443, 97 L. ed. 469, 73 S. Ct. 397, rehearing denied 345 
U.S. 946, holding that where several state collateral remedies are avail­
able, only one need be exhausted, and where a question is actually raised 
on direct review in state court, collateral state remedies need not be 
exhausted, and Ex Parte Davis, (1943), 318 U.S. 412, 87 L. ed. 868, 63 
S. Ct. 679 holding that the state remedies must be exhausted although 
petitioner alleges and offers to show that resort thereto would prove 
useless and ineffectual.



21

To use the words of the Supreme Court of Pennsyl­
vania,8 the case of Sweeney v. Woodall, 344 U.S. 86, 
97 L. ed. 114, 73 S. Ct. 139, “ clearly controls the pres­
ent case.”  In the Sweeney case this court said:

“ The scheme of interstate rendition, as set forth 
in both the Constitution and the statutes which 
Congress has enacted to implement the Constitu­
tion, contemplates the prompt return of a fugi­
tive from justice as soon as the state from which 
he fled demands him; . . . Considerations funda­
mental to our federal system require that the pris­
oner test the claimed unconstitutionality of his 
treatment by Alabama in the courts of that State. 
Respondent should be required to initiate his suit 
in the Courts of Alabama, where all parties may 
be heard, where all pertinent testimony will be 
readily available and where suitable relief, if any 
is necessary, may be fashioned.”

The petitioner has attempted to set out various 
factors which he alleges distinguishes his case from 
that of Sweeney v. Woodall, supra. These alleged fac­
tors are as follows: that here Georgia has acquiesced 
in the jurisdiction of the Pennsylvania Courts by in­
tervening in the trial court; here the alleged treatment 
is more brutal than in Sweeney; and that relief is 
unavailable to petitioner in the Courts of Georgia.9

(a) The State of Georgia did not acquiesce in 
the jurisdiction of the Pennsylvania Courts by

8 Brown v. Baldi, 378 Pa. 504, 106 A2d 777.
9 Two other grounds urged in the lower court were that Sweeney 

involved an appeal from a federal court under federal legislation where­
as here the appeal is from a state court under the Uniform Criminal 
Extradition Act The Supreme Court of Pennsylvania held below that 
these “ are all distinctions which obviously do not affect the fundamental 
principles involved,”  i. e., the Constitution and the laws of Congress 
thereunder. Petitioner waived these grounds by failing to include them 
in his petition for writ of certiorari. Rule 23 (c),  Supreme Court’s 
Revised Rules.



22

intervening in the Pennsylvania trial court for 
the purpose of challenging that court’s juris­
diction to free the petitioner.

The petitioner, on page 14 of his brief, asserts that 
Georgia must be penalized for its diligence in inter­
vening to challenge the jurisdiction of the Pennsylvania 
trial court. Georgia contended that the Pennsylvania 
court had no jurisdiction for the reason that the action 
of the Governor of Pennsylvania was clearly in accord 
with the duty imposed upon him by the Constitution 
and the laws of Congress thereunder.

In Johnson v. Matthews (CA-DC) 182 F. 2d 677, at 
page 683, Circuit Judge Prettyman enumerated a num­
ber of reasons which might impel a demanding State 
to ignore distant proceedings such as those Georgia 
had defended. All of these reasons for inaction are 
present but since Georgia’s failure to appear was criti­
cized in Johnson v. Dye, (CA 3d) 175 F. 2d 250, 
Georgia has not refrained from participation. The 
charges made in the absence of Georgia authorities are 
frequently believed and the seriousness of the charges 
has in Georgia’s absence been reflected in a severely 
critical judicial determination of Georgia’s institu­
tions. In absentio Georgia has been falsely described 
as “ impenitent” and as “ signally failing in its duty as 
one of the sovereign States of the United States to 
treat a convict with decency and humanity.”  By ap­
pearing in this case, even though the trial court denied 
Georgia the use of depositions 10 as to witnesses in 
Georgia,11 and placing the laws of Georgia and the

i o Attached to respondent’s motion for leave to take depositions were 
affidavits of all witnesses whose depositions were sought to be taken 
for the purpose of illustrating to the Pennsylvania trial court what 
evidence the State of Georgia was prepared to offer.

11 The Supreme Court of Pennsylvania said: “ Counsel for the State 
of Georgia moved the Court for permission to take depositions of wit­
nesses there for the purpose of refuting relator’s testimony; for some 
reason such permission was refused.”  (emphasis supplied)



23

rules and regulations of the Georgia penal system in 
evidence, the Supreme Court of Pennsylvania was 
convinced that the charges against Georgia were “ open 
to grave question.”

Georgia’s intervention to challenge jurisdiction in 
no way affects the Constitution and the laws of Cong­
ress thereunder nor this Court’s holding in Sweeney 
v. Woodall, supra.

(b) The constitutional and statutory provisions 
of interstate extradition, as interpreted by this 
Court in Siveeney v. Woodall, a,re in no way 
limited by the degree of alleged brutality.

The petitioner, on page 14 of his brief, asserts that 
this case is distinguishable from Sweeney on the ground 
that there was greater brutality here. It is rather 
difficult for the respondent to believe that any of the 
alleged fantasy in the petitioner’s brief could be con­
sidered as tortuous as the allegation in the Sweeney 
case that the petitioner was forced to serve as a “gal- 
boy” or female for the homosexuals in the Alabama 
prison. Nevertheless, allegations of cruel punishment, 
as set out on page 10, supra, do not affect the law of 
interstate extradition. In addition, the petitioner’s 
claim of brutality was rejected by the Supreme Court 
of Pennsylvania.

(c) The question of whether relief is unavail­
able to the petitioner in the Courts of Georgia 
is not before this court.

No evidence was introduced by the petitioner in the 
trial court sustaining his allegations to the effect that 
relief is unavailable to him in the courts of Georgia. 
The opinion of the trial court12 held that no such proof

12 See page 16 of petitioner’s brief.



24

was made, and the Supreme Court of Pennsylvania 13 
agreed by saying:

“ But the testimony thus presented and the appre­
hensions thus expressed cannot be accepted, and 
were not accepted by the court below, as proof 
that if relator were now returned to Georgia he 
would be prevented from recourse to the courts of 
that State or to the Federal Courts for the protec­
tion of his constitutional rights . . . The sugges­
tion that if the relator were returned to Georgia 
he would be deprived of legal help and protection 
must be rejected.”

(d) Corrective process for any alleged viola­
tion of the constitutional rights of the peti­
tioner by the State of Georgia are afforded by 
the courts of Georgia and upon writ of cer­
tiorari to this court.

The courts of Georgia are ready, willing and able 
to hear any alleged claim the petitioner might wish 
to make concerning his constitutional rights. The 
Constitutions of the State of Georgia of 1877 and 1945, 
Art. I, Sec. I, Pars. 9 and 11, provide as follows:

“ Paragraph IX. Bail; fines; punishment; arrest, 
abuse of prisoners. Excessive bail shall not be 
required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted; nor shall any 
person be abused in being arrested, while under 
arrest, or in prison.”
“ Paragraph XI. Habeas corpus. The writ of Ha­
beas Corpus shall not be suspended.”

Georgia’s statute on Habeas Corpus 14 is as broad as 
any other state in the Union. It provides as follows:

is Petition for Certiorari, page 22.
i i  Ga. Code Ann., §50-101.



25

“ Any person restrained of his liberty under any 
pretext whatever, or any person alleging that 
another, in whom for any cause he is interested, 
is restrained of his liberty or kept illegally from 
the custody of the applicant, may sue out a writ 
of habeas corpus to inquire into the legality of 
such restraint.”

The Georgia statute allows any stranger to bring 
it for the benefit of another, and Broomhead v. Chisolm, 
47 Ga. 390, held that “ interest arising from humanity 
alone comes within both letter and spirit” of the above 
statute.

Are we to assume from petitioner’s brief that the 
Association, which represents him before this Court, 
intends to desert him once he returns to Georgia? 
Let the respondent assure him that his counsel have 
associates in Georgia as evidenced by the volume of 
litigation before this Court from Georgia, and that 
he can be assured of as much sympathy there as in 
Pennsylvania.15

Furthermore, as to any claim he might have on

15 Johnson v. Matthews (1950) 182 F. 2d 677 at 681, the United States 
Court of Appeals for the District of Columbia Circuit said: “ . . . it 
seems not inappropriate for us to comment that reported cases show 
the United States Court of Appeals for the Fifth Circuit to be as zealous 
in protection of the constitutional rights of persons within its borders as 
is any other Court of Appeals. It was the United States District Court 
for the Middle District of Georgia which convicted and sentenced to 
the penitentiary one Screws, a sheriff, for beating a prisoner. The 
Fifth Circuit affirmed that conviction upon constitutional principles, 
the Supreme Court reversing on the ground that the statute required 
a specific intent to deprive a person of a federal right and that an un­
necessary beating alone is not sufficient for conviction. It was the 
same District Court which awarded damages to a Negro voter against 
the officials of a party primary election for denying the voter the right 
to participate in a primary, the court holding such deprivation to be a 
violation of rights under the Fourteenth, Fifteenth and Seventeenth 
Amendments; and the Court of Appeal for the Fifth Circuit affirmed 
that judgment. It was the same Court of Appeals which, in Crews v. 
United States, affirming a conviction under the federal statue making 
criminal a deprivation of constitutional rights under color of law, con­
demned that statue as ‘inadequate.’ The list of cases could be expanded.”



26

denial of benefit of counsel at the time of his convic­
tion, the courts of Georgia do not merely follow Powell 
v. Alabama, 287 U.S. 45, 77 L. ed. 158, 53 S. Ct. 55, 
but give even greater protection to the accused.16

On page 5 of the petitioner’s brief reference is made 
to letters from four Superior Court clerks that no 
writ of habeas corpus had been filed in their county 
during the previous five years. This is understandable 
because of the fact that under Georgia law 17 habeas 
corpus may be brought in the City Court, Court of 
Ordinary or Superior Court. It has been the more 
usual practice of prisoners to file a petition in a City 
Court or Court of Ordinary than in a Superior Court 
because of the shortness of time. Superior Court 
Circuits cover many counties and while there is a clerk 
for each county, the judge may be a considerable dis­
tance away at some other term of court. In the past 
four years, seventy-three petitions for habeas corpus 
have been brought by inmates of the Georgia penal 
system and defended by the State Law Department.

While much has been said of Georgia’s penal sys­
tem of fifteen years ago, the respondent is of the 
opinion that it is now as fine as any state in the 
Union.18

The Courts of Georgia are open to the petitioner. Let 
him seek them out by following the route ordered under 
the Constitution and interpreted by this court in 
Sweeney v. Woodall, supra.

16 Williams v. State, 192 Ga. 247, 257, 15 S.E. 2d 219, and Wilcoxen v. 
Aldredge, 192 Ga. 634, 638, 15 S.E. 2d 873, both holding in habeas corpus 
that, “ if appointed attorneys are so ignorant, negligent, or unfaithful 
that the accused was virtually unrepresented, or did not in any real 
or substantial sense have the aid of counsel, he would be deprived of a 
fundamental constitutional right, and if convicted might successfully 
complain that he had been denied due process of law.”

17 Georgia Code Annotated, §50-103.
18 See Appendix A.



27

VII
CONCLUSION

For all of the foregoing reasons advanced in the 
argument and citation of authorities, respondent re­
spectfully urges that certiorari be denied.

Respectfully Submitted,

EUGENE COOK,
Attorney General

P. 0. Address: ROBERT H. HALL,
201 State Capitol Assistant Attorney General
Atlanta, Georgia

E. FREEMAN LEVERETT, 
Attorney

Attorneys for Respondent

JAMES W. TRACEY, JR., 
Deputy Assistant Attorney 
General

LAMAR W. SIZEMORE, 
Deputy Assistant Attorney 
General Of Counsel



28

A P P E N D I X
1. CONSTITUTIONAL PROVISIONS.

a. United States Constitution, Art. IV, Sec. II, 
Par. 2.
“A  person charged in any State with Treason, 
Felony, or other Crime, who shall flee from 
Justice, and be found in another State, shall 
on Demand of the Executive Authority of the 
State from which he fled, be delivered up, to be 
removed to the State having Jurisdiction of the 
Crime.”

b. Georgia Constitution, 1945, Art. I, Sec. I, Par. 7. 
“ Neither banishment beyond the limits of the 
State, nor whipping, as a punishment for a 
crime, shall be allowed.”

Georgia Constitution, 1945, Art. I, Sec. I, 
Par. 9.
“ Excessive bail shall not be required, nor ex­
cessive fines imposed, nor cruel and unusual 
punishments inflicted; nor shall any person 
be abused in being arrested, while under arrest, 
or in prison.”

Georgia Constitution, 1945, Art. I, Sec. I, 
Par. 11.
“ The writ of Habeas Corpus shall not be sus­
pended.”

2. STATUTES, 
a. Federal.

18 U.S.C.A. 3182:
“ Whenever the executive authority of any State 
or Territory demands any person as a fugitive 
from justice, of the executive authority of any 
State, District or Territory to which such per-



29

son has fled, and produces a copy of an indict­
ment found or an affidavit made before a mag­
istrate of any State or Territory, charging the 
person demanded with h a v i n g  committed 
treason, felony, or other crime, certified as au­
thentic by the Governor or chief magistrate of the 
State or Territory from whence the person so 
charged has fled, the executive authority of the 
State, District or Territory to which such per­
son has fled shall cause him to be arrested and 
secured, and notify the executive authority mak­
ing such demand, or the agent of such authority 
appointed to receive the fugitive, and shall 
cause the fugitive to be delivered to such agent 
when he shall appear. If no such agent appears 
within thirty days from the time of the arrest, 
the prisoner may be discharged.”
28 U.S.C.A. 2254:
“ An application for writ of habeas corpus in 
behalf of a person in custody pursuant to the 
judgment of a State court shall not be granted 
unless it appears that the applicant has ex­
hausted the remedies available in the courts of 
the State, or that there is either an absence of 
available State corrective process or the exis­
tence of circumstances rendering such process 
ineffective to protect the rights of the prisoner. 
“An applicant shall not be deemed to have ex­
hausted the remedies available in the courts of 
the State, within the meaning of this section, 
if he has the right under the law of the State to 
raise, by any available procedure, the question 
presented.”



31

for mentally diseased inmates and those prison­
ers afflicted with contagious, infectious and in­
curable diseases. The Board shall likewise adopt 
and promulgate rules and regulations governing 
the penal system, which will guarantee a wise 
and humane prison program.”
Ga. Code Ann., 77-370, As Amended, 1946. 
“Corporal punishment of prisoners; use of 
shackles, manacles, etc. — Whipping of inmates 
and all forms of corporal punishment shall be 
prohibited. All shackles, manacles, picks, leg 
irons, and chains shall be barred from use by 
any correctional institution, public work camp, 
highway camp, or other institution of confine­
ment operated under authority of the State 
Board of Corrections. In transferring prison­
ers from one locality to another, manacles may 
be used where necessary to restrain or prevent 
the prisoner’s escape.”
Ga. Code Ann., 77-379, As Amended, 1946. 
“Educational, recreational, and religious activi­
ties for prisoners. — The State Board of Correc­
tions, in institutions under its control, shall 
give the prisoners opportunity for reasonable 
educational and recreational activities where 
practical, and shall afford opportunity for re­
ligious activities to such prisoners as may de­
sire to attend same.”
Ga. Code Ann., 77-383, As Amended, 1946. 
“Investigating and hearings by Board. — The 
State Board of Corrections shall conduct hear­
ings upon all complaints made against any of­
ficer or employee of the Board, or of any insti­
tution operated under authority or supervision



30

b. Georgia Statutes.
Ga. Code Ann., Sec. 50-101,
“ Any person restrained of his liberty under 
any pretext whatever, or any person alleging 
that another, in whom for any cause he is inter­
ested, is restrained of his liberty or kept ille­
gally from the custody of the applicant, may sue 
out a writ of habeas corpus to inquire into the 
legality of such restraint.”
Ga. Code Ann., Sec. 50-103,
“ The petition must be verified by the oath of 
the applicant or some other person in his be­
half, and may be presented to the judge of the 
superior court of the circuit where the illegal 
detention exists, who may order the party re­
strained of his liberty to be brought before him 
from any county in his circuit; or it may be 
presented to the ordinary of the county, except 
in cases of capital felonies or where a person is 
held for extradition under warrant of the Gov­
ernor.”
(The Supreme Court of Georgia has held that a 
judge of a city court may issue, hear, and deter­
mine a writ of habeas corpus. Sumner et al v. 
Sumner, 117 Ga. 229, 43 S.E. 485).
Ga. Code Ann., 77-366, As Amended, 1946. 
“Duty of Board to provide for segregation of 
certain classes of prisoners and to enact humane 
rules. —  The State Board of Corrections shall 
carry out the provisions of this law (§§77-358 
to 77-389) in providing for proper facilities for 
the segregation of juveniles, first offenders of 
the law, habitual criminals and incorrigibles, 
and for the provision of proper hospitalization



32

of the Board. It shall also conduct investiga­
tions and hold hearings, on any specific cause 
when suggested to do so by the Governor, and 
it may on its own motion or upon suggestions 
of any citizen make investigation in regard to 
the enforcement of this law (§§77-358 to 77- 
389) and the observance of all rules and regu­
lations made for the enforcement thereof.”

3. RULES AND REGULATIONS OF THE GEOR­
GIA BOARD OF CORRECTIONS.
UNDER AUTHORITY of the ACT of the GEN­
ERAL ASSEMBLY, Approved February 1, 19^6, 
the following rules and regulations for the govern­
ment of the Penal System are hereby established.

I. General Policy
It shall be the policy and purpose of the State 

Board of Corrections to bring about practical and 
economical administration of the State Penal In­
stitutions and Camps, and to provide for the hu­
mane and rehabilitative treatment of the prisoners 
as contemplated by the Act of the General Assembly.

IV. Sanitation
Camp quarters, facilities, equipment and sur­

rounding grounds shall be maintained in sanitary 
conditions at all times. The Warden or a designated 
officer shall make regular and complete inspections 
for the purpose of maintaining high standards of 
sanitation. Camp inspectors will check specially on 
sanitation and safety on all visits to camps.

Use of disinfectant or substitutes for soap and 
water for cleaning purposes should be discouraged. 
Necessary steps shall be taken to see that facilities,



food and water supplies meet health and sanitation 
standards and laws at all times.
V. Food Service

The State Board of Corrections shall provide each 
county public works camp, through a Supervising 
Steward, with a sufficiently wide variety of daily 
menus to meet local food supply conditions and at 
the same time provide a balanced diet based on a 
standard ration established by the Supervising 
Steward. The County Wardens shall have the right 
to select any one of the different menus for feeding 
purposes, but must use one of the recommended 
menus so as to meet the requirements of standard 
rations and balanced diets.

VIII. Discipline
The use of corporal punishment, or the manacling 

of prisoners as punishment is strictly prohibited. 
Physical force in the control of prisoners must not 
exceed that degree of force necessary to maintain 
control of the prisoner. This does not mean that 
officers are not permitted to protect themselves 
against assault or to take such positive action as is 
necessary to subdue a violent prisoner. It does mean 
that they are not to abuse or whip the prisoners. 
Officers will be required to report in writing all in­
cidents where physical force is used on a prisoner, 
and explain the necessity for the action taken. This 
report will be placed in the prisoner’s file and a 
copy forwarded to the Director of Corrections im­
mediately.

The purpose of disciplinary action is not only to 
punish the offender and provide better control and 
discipline of the prisoner group generally, but to 
correct attitudes of the individual prisoners and to



34

encourage them toward better conduct and self- 
improvement. The control and restriction of those 
privileges which are most valued by the individual 
prisoner provides one of the best means of dis­
cipline. The Warden should see to it that discipline 
is administered on the basis not only of the nature 
and seriousness of misconduct in the individual 
case, but also on the basis of the individual needs, 
attitude and situation relating to the particular 
prisoner, keeping in mind the accomplishment of 
the above stated objectives.

IX. Medical Services
A camp physician shall be appointed for each 

county public works camp in accordance with law 
and regulations. Such physician shall provide all 

necessary medical services for the prisoners of such 
camp, consistent with requirements of the law and 
regulations, and the welfare and needs of the pris­
oners.

The physician shall make as frequent visits to 
the camp as is necessary and possible, and shall 
hold sick line on each visit and not less than twice 
weekly. The physician shall advise the Warden 
with respect to sanitation, segregation or disposi­
tion of diseased prisoners, diet for sick prisoners, 
and physical or mental limitations of prisoners 
with respect to work requirements. The Warden 
shall be guided at all times by the advice of the phy­
sician.

XIII. Camp Inspection
Camp Inspectors shall make regular and fre­

quent visits to all county camps and shall make 
written reports of their findings to the Board of 
Corrections, on a regularly perscribed form, and a



35

copy of said report shall be sent to the County Com­
missioners of the county affected. It shall be the 
duty of camp inspectors to render full assistance 
and advice to the Wardens of county camps in the 
corrections or improvements of conditions for the 
purpose of obtaining and maintaining the mini­
mum standards contemplated by these rules and 
regulations.

The State Board of Corrections will undertake 
to provide all camp inspectors with a thorough 
course of training, not only in their duties as in­
spectors, but in custodial administration, supervi­
sion, physical defense, and firearms, and these in­
spectors will cooperate with the Wardens in provid­
ing training for camp personnel, wherever possible.