*2 BIGGS, Judge, Before MAR- Chief IS, Goodrich, McLaughlin, o’- CONNELL, KALODNER, Circuit Judges.
Opinion (Filed May Court. 1949.)
BIGGS, Judge. Chief
The Facts. petitioner, Johnson, Leon custody the Commonwealth of
Pennsylvania presently and is confined County Jail, respondent, Dye, Charles L. is the Warden. was indicted in the Cobb Superior Court of the State of Thomp the murder of one Sarah Frances son December 1942. He was tried O’CONNELL, Judge, dissenting Circuit jury found him of mur guilty part. der with a recommendation mercy January 1943. Under the law Geor gia, Georgia Annotated, 1935, Title Code 26, 1005,the jury recommendation § imprisonment. penalty fixed the at life thereupon sentenced hard June, petition for life.1 In labor escaped er chain eventually came Allegheny County, Pennsylvania. Governor Arnall of Geor dispatched requisition gia for extradi of Pennsylvania tion to Governor James apparently The Court exceeded its ment does of itself render sen authority sentencing prisoner Johnson to hard void so as to entitle tence discharge corpus. The law of on habeas labor. authorizes Har See labor,” McGourin, “confinement and where sen lan v. imprisonment. 849; includes tence See Geor Ann.Cas. gia Annotated, Pridgeon, Code Title United States v. Sec. 2504. imposition However, this unlawful imprison hard labor to the sentence of hearing the court and after a full warrant who issued an executive dis- F.Supp. opinion, filed an as We apprehended. which Johnson appealed charged the writ. application for extradition that the sume this court. pursuant Uniform Crim made to the *3 Pennsyl Act, Laws of is- inal Extradition it that at the outset We must 19 P.S.Pa. July § vania P.L. lawof dispose questions the difficult to of “Interstate also the 191.1. See so-called appeal record! on the by raised the instant 5278-5279, 18 Act,” however,, R.S. Extradition appears, §§ us.5 It now before appears far as So 662-663. below U.S.C.A. court petition §§ the from in Johnson’s Attor not call on the did the Governor him for by asserted grounds that the James of prosecuting officer any or Re- ney General writ three-fold. the were issuance of authorized to do was Pennsylvania as he alleged his constitutional (1) that investigate the demand the Act in: to murder at his trial had been violated Georgia. Laws See by of made who' witnesses” Georgia “several in that P.S. Pennsylvania P.L. compelled of do- to against him were testified petitioned the Court 191.4. Pa. Cobb by police authorities of § so “certain Johnson County for Allegheny Pleas following his (2) Common County, Georgia”; corpus at its No. writ of habeas chain “committed to he was conviction * * * Term, April copy of There is no victim 1946. was the petition pro cruel, to Court the inhuman treatment barbaric Johnson’s ceedings therein in record. the The Court jailors the extent his the hands of apparently2 jeop refused to grave Common Pleas were in his health life and “ * * * discharged free the writ. The ; in the ardy” (3) Johnson im Geor of Common Pleas under the State of Court is returned the event he pleaded pression guilty his complete his unfinished sentence gia to Johnson Georgia.3 endangered The fears that the indictment in deci and he will be life by Superior was reviewed the sion Court danger that he there is returned Pennsylvania judg by affirmed the death mob will meet his violence jailors Pa.Super. by
ment of the below. or tortured court be so brutalized 14, 1947 A.2d No review On March seems to that he will succumb.” petition by reassert sought by in the amended have Su Johnson supra slightly different ing ground (1) Pennsylvania or preme Court of in the Su testimony that the of the adding preme terms and Court the United States. On and intimidated witnesses ma “coerced petitioned November the terial, in his conviction resulted corpus. a writ court of habeas per wholly and' fact was false truth and the issuance of a rule to cause After show prosecuting well petition, jured, authorities filed answers4 copy proceedings ord Cobb Coun- No of the of the court’s in order ty present its it had rendered Court until after cluded record. decision in the We make statement this because corpus proceeding. appears appellee from brief of the Superior Pennsylvania by answer was filed the United Court of An appeal by District At- from the United States the decision Court States torney. by Judge answer United of Common Pleas that filed The Attorney that, District states Court Common Pleas said: “I have States up my show not been mind about it. man “The rule to made cause Attorney plead guilty on the United [Johnson] admitted he served States * * * proceedings regular murder and District but Clerk this my viewpoint.” from of Court seems be of the did state by hearing filed before the Court of Com- answer should be Attorney.” pleaded guilty mon Pleas that he to the States Georgia attempted supplement rec indictment. 5 We record proceedings County brought parties ord before Cobb Su- directing August perior Court of State of our order of clearly, however, -of District demonstrates the Clerk Court to trans statement was incorrect. mit all records court below Johnson’s Allegheny Court of instant to this court. Common Pleas case County, however, did not receive the ree- evidence, take of this tion are the con- admissible as view that we In the knew.” upon ground referred em- pass tents the articles to were unnecessary to case it is ployed by some a basis witnesses as (3), supra. comparison for conditions below the In the court camps personally known Because them. ground (1) supported allegations of may this we consider the contents ground (2) testimony and those his own the articles as did the court Coun- below. testimony by that of other his own respondent urged sel for the in the court one, whom, were es witnesses, all save proved below that the article in “Life” hap caped who convicts Georgia prison system the abuses lodged pened to be *4 by Georgia had been obliterated Act of former was a jail. remaining witness 1943, Sess., 5; Special page but this asser- Army of United States officer in the tion, stated, as we have was contradicted portion spent in of his service who had part major by petitioner’s in certain of in who was confined then testimony No was witnesses. offered on previously having jail behalf of the by State or Pittsburgh escaped in detention fol from respondent. alleged his felonious lowing arrest for The Law. witnesses testimony of these assault. petitioner established as well as of the Alleged A.s to the Coercion Intimida- Georgia au it was the custom of the or tion Witness Witnesses. prisoners with thorities treat chain in The court its reviewed persistent brutality at deliberate or proceedings corpus habeas petitioner suffering about the time Pennsylvania behalf of the in the thereafter, years and for some and, State Courts with a reference to the certainly year as late as in the May jurisdiction limited conferred There was also evidence which showed that justices and judges of the United States prisoners great Negro with a were treated enlarge prisoner by writ prison degree er brutality than white corpus 451, under Sections 452 453 though ers difficult make fine dis (now Title 28 superseded U.S.C.A. degrees brutality. tinctions as to A 2241, 2242 Sections Title 28 Revised copy magazine “Life”, issue No U.S.C.A.), to the Mooney cases of v. 1943, 1, particular vember in an article en Holohan, 103, 340, 294 55 U.S. S.Ct. 79 L. Prisons,” “Georgia titled with a subtitle 791, 406; Pyle 98 Kansas, Ed. A.L.R. 317 Abuses,” pp. 93-99, “State Old Abolishes 214; 213, 177, 63 U.S. S.Ct. 87 L.Ed. magazine “Time”, copy and a issue Olson, 271, 116, Hawk v. U.S. S.Ct. 13, September 1943, particular in an ar L.Ed. concluded that as al facts ticle entitled “Prisons” with the subtitle leged true, petition in the shown were to be “Georgia’s 23-24, Ages,” pp. Middle were remedy “would be entitled to the introduced in evidence. Certain other Mooney forth set in v. Holohan” F. [71 newspaper articles were introduced also Supp. judge learned trial 265]. exception, but these with one “PM’s Pic stated, however, “There in evidence Section,” News, Magazine ture November witnesses, his case that who testified reports Report in full the Georgia, in trial State Court were the President’s Committee Civil so-; compelled to do there is no evidence Rights, are not in record.6 Several of they perjured gave testimony, nor is petitioner’s support witnesses in any evidence that the petition there State of Geor for habeas testified that the agents, or gia per its officers or knew that conditions described the articles jured testimony against was used represented rela correctly
“Life” “Time” This statement of the trial court certain conditions tor.” but the witnesses stated erroneous. There was testi substance that own go articles did not Johnson’s enough. Irrespective mony support regard far of whether or not contentions magazines alleged articles perjured, testimony of national circula- coerced of a adequately Emphasis throughout, Their absence is not ex added
plained. process due the the clause the Fourteenth and to for murder at his trial witness abridg- from through prohibits Amendment a state knowledge denying question. ing court be- regard. The its officers testimony may have found low holding, we In so not unmindful Johnson’s judge did learned trial but the incredible the fact Court of we take say But in the view so. repeatedly United States declined question unnecessary to resolve it is adopt Amend that the view Fourteenth was intimidated witness whether a ment was intended to make secure John- Georgia. County,
son’s trial Cobb privileges rights, all the invasion protected federal viola immunities Amend- Application As Rights. the Bill of Chambers v. tion the United ment the Constitution Florida, 235-236, note U.S. the Four- Implementation Under States by n 716; g., see e. also S.Ct. Amendment. teenth 78, 98- Twining Jersey, v. New 211 ground raised As second John- 99, 114, Mr. S.Ct. Jus stated, evi- “There is son court .below Dow, dissenting; tice Harlan Maxwell v. treat- received dence 605, 606, 20 dissent of mur- ment he had been convicted after *5 597; Connecticut, 44 Palko 302 L.Ed. v. serving his sentence der while he was and 319, 149, 323, 325, 326, 82 58 U.S. S.Ct. However, treatment would such therefor. 288; 496, Hague C.I.O., 307 L.Ed. v. U.S. it not liberty him his as does not entitle 954, 59 L.Ed. 1423. S.Ct. 83 a of relator violation constitute custody the United the laws of of Constitution or Supreme But cases the in numerous 8th 28 U.S.C.A. 453. The § States. right that where the in Court held upon the is a limitation Amendment not by state is a “basic” “funda vaded the and 502, Johnston, v. 237 U.S. States. Collins one, process mental” the due clause the 511, 510, 649, L.Ed. 1071.” 503, 35 59 S.Ct. imple by include Amendment Fourteenth quoted in We deem the first sentence guarantees of Bill mentation those finding by the paragraph to constitute a g. speech, E. Rights. freedom of Saia v. been sub- had court below Johnson 560, York, 558, 1148, New 68 334 U.S. S.Ct. following jected treatment cruel 1574; religion, freedom of 92 L.Ed. Cant using It is obvious also conviction. Connecticut, 303, 296, well v. be- phrase “cruel treatment” the court 1213, 900, 84 128 60 S.Ct. L.Ed. A.L.R. referring and unusual low was cruel 1352; Alabama, 501, 326 v. U.S. Marsh provision Eighth 276, 508-509, 265; free 66 S.Ct. 90 L.Ed. Amendment. press, Griffin, Lovell v. 303 dom 949; 666, 58 82 L.Ed. U.S. S.Ct. regard minutiae Without Hague speech assembly, freedom of and opinion, we trial court’s conclusion C.I.O., supra; right v. to counsel misinterpreted ruling it think prosecutions criminal indi those Johnston, Supreme in Collins v. su Court viduals, who, by age, ignorance reason of Eighth true that pra. While it incapable capacity, repre are the or Constitution of mental to the Amendment adequately senting prose themselves a intended and was States limits United nature, relatively simple a action, view, Wade modern cution of limit federal 672, 684, one, Mayo, v. 334 feel, U.S. 68 and, the correct that where S.Ct. we 1647; 92 and also Ala L.Ed. see Powell protected guaranteed v. bama, 287 VIII) 53 S.Ct. Rights I to U.S. 77 (Amendments the Bill of 527; Brady, Betts v. “bas 84 A.L.R. 316 Constitution is States of the United 455, 461, 1252, 1256, rights life U.S. 86 L.Ed. “fundamental” to the ic” and 1595; Connecticut, supra, liberty, by Palko recognized guaranteed v. 324-325, States, pages 149, 151, S.Ct. the United then U.S. the Constitution guarantees specific found in Amend- the Sixth Court said: “The Sixth by although applies denial Amendment a the national Constitution ment of specifically privileges only in federal courts. due em- trials process others first clause of the Fourteenth Amend- bodied eight may, such, incorporate, amendments in certain cir- as does not ment ;9 particular see by L.Ed. 288 State on authorities described Resweber, 329 La. ex. v. rel. Francis his witnesses cruel and un constituted 374, 384, 459, 463, punishment. 91 L.Ed. U.S. S.Ct. usual be remembered It will Mr. where the Court that there was below found Jus indicated, expressly Reed de tice without “evidence received cruel ciding, principles violation of treatment after he had convicted of been Eighth as to the Fifth and Amendments serving murder and while he sen * * judge double cruel tence learned trial jeopardy punishment would be of the due expressly violative not did state that found this process though, clause of the Fourteenth Amendm we evidence to be credible have said, ent.10 statement made the court be in its and heretofore referred low decide, We are not called on to finding to constituted decide, nor do we the clauses of whether subjected pun to cruel and unusual imposi relating Amendment ishment following any his conviction.11 In bail, fines, tion of or excessive excessive upon appeal event in a habeas case within fall the ambit Fourteenth questions all law arising upon or fact Amendment. But we entertain no doubt record, evidence, including open are prohibits Amendment Fourteenth appellate to consideration court and punish and unusual infliction authority trial court has no to make ment State La. ex Fran state. rel. Resweber, findings conclusive supra. Compare fact as in cis Weems the ordi v. action, 544, nary Sayre, U.S. v. S.Ct. 705; 19 Ann.Cas. In re and we *6 Kemmler, by 930, bound 136 U.S. 10 conclusions the trial S.Ct. court, Reed, Cir., opinion 34 L.Ed. Carruthers v. 519. We are of that F.2d right hearing 937. The to be free cruel before this court is from and unusual punishment technically It is at the hands of a de novo. our State is as conclusion upon “basic” and “fundamental” a one as the careful of the consideration record speech of freedom of or freedom of the court below that was sub religion. pointed And it be punishment should out that cruel jected to and unusual prison employees sys actions of the of the following his sentence and that this hold Georgia tem of be must deemed be accordance, is variance, and not at ing Georgia. those of the State of The fact that with court Indeed below. illegally a state officer acts re cannot possible other be conclusion would in view responsibility lieve for his acts. known concerning of the facts the work Screws v. United system penal of the ing A.L.R. 1330. petitioner’s of the sentence time and in We of the circumstance question come then to the consideration offered no Georgia pris testimony to whether the as actions State eumstanees, action unconstitutional.” connection with other Mr. Justice elements, given case, majority operate, in a de- Frankfurter concurred in the prive litigant process but did not commit himself due of law to a definition reach violation of the Fourteenth.” of -the of the Fourteenth 9 The Court said: “In and these other Amendment. reargument valid At situations immunities as of this case be- government by Dye’s the federal force fore en bane one of the court coun- specific pledges particular sel, Attorney Assistant District Al- legheny County, Pennsylvania, found amendments have been to be im conceded concept subjected liberty, by plicit ordered had been if Johnson thus, through following Georgia, and Fourteenth against State convic- punishment Amendment, tion, as valid and unusual become cruel discharged states.” was entitled to be from cus- dissenting, tody Burton, go Mr. stat- and to Justice free. Assistant Dis- himself, Douglas, Attorney, however, for Mr. Justice did ed trict not con- Murphy Mr. Hut- Mr. Justice Justice cede that had made a ledge: finding subjected if the believe that facts are “We that Johnson had been alleged by proposed punishment. relator as to cruel and unusual Territorial imposed by a given cadena had been in contradiction whatsoever obligation Philippines. The of the Court witnesses. and his punishment unusual to inflict cruel and not sub was Our conclusion Constitution laid State punishment unusual jected to cruel to be must deemed the United States be Supreme of the decision buttressed positive case binding. the Weems In Weems Kemmler and In Court in re reasonably punishment and unusual cruel Weems, Sec-' States, supra. anticipated sentence. under the was to be Philippine. of the 56 of Penal Code tion case, pun cruel unusual In the instant guil Islands, July Act of already been inflicted ishment has John alia “to inter sentenced ty and had been court below and ourselves son as the we to years cadena penalty of fifteen tne potent a force History found. is as have accessories Section gether with the follows, therefore, anticipation. It as * * Code Penal [Philippine] liberty must set at be chain at the of a The cadena consisted duty signally has its failed to be worn the wrists hanging ankle sovereign States the Unit as one of Section The “accessories” times. all decency with ed to treat a convict States deprived Weems almost have would humanity. pointed It must be out also familial completely personal ex she has failed also observe the him constant surveillance subjected plicit mandates her Constitution own Supreme authorities. The Court pointedly, very evil as here States, by Mr. Mc- of the United Justice mind, far, go was in under consideration as Kenna, was a decided that farther, than those of the if not Accordingly the one. unusual Amendment Constitution of the trial court judgment reversed and the United States. proceedings. directed to dismiss the Though set not Court Necessity to Exhaust State Remedies. No precise con any what standard down doctrine of exhaustion of punishment, Wil cruel and stitutes remedies cases does State Utah, 130, 135-136, L. kerson v. apply to extradition. This court 'in without hesitation Ed. we conclude *7 Superintend Darcy v. United ex rel. States prison treated the that if 1940, County Cir., Prisons, 3 111 F. of ent of the manner authorities 662, 409, 411, 311 certiorari denied U.S. 2d subjected alleges,12 and he was to cruel he 19, 425, “The L.Ed. stated: S.Ct. punishment by the State of unusual Geor right to demand of of California gia. way in which We know of no de relator from State of the the rendition may coldly grees cruelty be measured IV, Pennsylvania is Article found altimeter, upon as much an so for the the Constitution of clause Section cruelty, depths
heights much for so self This clause is not United States. thereof. act effective executing but is made Title 18 Congress Section 662 of obligation of a State treat [then U.S.C.A., 3182 of Title 18 now Section decency humanity and its convicts with is Supreme Court has con an absolute and a federal court will one U.S.C.A.]. placing duty. as the burden a strued this act not overlook breach asylum governor Court so held in effect state to deter though mine, demand, punishment complying V/eems case before with the 1, par. 9, opin- § Article shall not out this Bill of We set Rights revolting John- ion the barbarities which Constitution of 1877, readopted son and his habit- without witnesses state were amendment ually “Bail; fines; perpetrated punish 1945, provides, standard as chain ments; arrest; practice. perpetrate prisoners. To atrocities abuse these —Ex required, is to unfair to the Amer- cessive bail shall not be be nor ex imposed, a whole and to reflect lit- fines ican as cessive nor un scene cruel and generation posterity. punishment inflicted; any tle credit usual nor shall enough leg-irons being arrested, person is to state that be abused in It while among frequent beatings arrest, prison.” were or most constant cruelties. “minor” said, substan the rule of exhaustion state reme- demanded person whether apply whether corpus dies does not where habeas awith crime charged tially sought deter to avoid justice. This extradition. We adhere fugitive he is a governor to the rule we in Unit- announced made may be mination fugi Superintendent alleged Darcy ed States ex rel. v. hearing, but if the a without by the of Prisons and our deci- aggrieved overrule himself tive considers Meyer. sion in upon writ Powell v. hearing It follows that a may obtain order right pro- allow had may be to maintain the The writ corpus. of habeas court,” ceeding in the District Court in the in- or federal by a ed either Rob stant point case and we referred entertain no doubt but last upon the citing 291, 29 that he is liberty. entitled his 80, 6 S.Ct. Reilly, 116 U.S. erts v. Thaw, 235 U.S. 544; Drew v. L.Ed. Accordingly judgment of the court Biddinger 302; L.Ed. below will be and the cause reversed will 128, 38 Police, U.S. Commissioner be remanded with the direction issue Hogan v. O’ S.Ct. discharge writ petitioner. Neill, Appeals by the Court was held 497. It O’CONNELL, Judge (concur- Circuit States in United Circuit Seventh for the ring dissenting part, in part). Meyering, 75 F.2d McCline v. rel. ex agree that, my just I with brethren as pro begun a if a Amendment forbids the inflic- corpus court for habeas in a State ceeding punishment by tion of unusual pro discontinue nonetheless he could government, federal the Fourteenth petition relief in ceeding file prohibition Amendment includes a similar 22 Am. also court. See district a federal Regardless against guilt states. Extradition, 54, p. where Section Jur., charge lodged innocence of the murder causes, governor “After the it is stated: him, never lost—and still delivery warrant, arrest and by his subjected has—the absolute not to be jus fugitive from charged person to cruel wherever prisoner, state, since another tice from Constitution the United States is derived authority under color he is held supreme law. laws Constitution from the Further, agree I may judgment of may invoke the be here utilized to vindicate con Johnson’s state, Federal, as the tribunals as well right. stitutional It is not without reluc im his arrest and lawfulness I conclusion, tance that reach this how page 135 A.L.R. at See also prisonment.” ever; (1) that, I keenly remain aware because disregard chooses to *8 per In curiam a in the case of mandates of the Amendment and of Meyer, Cir., 1945, Powell 147 F.2d constitution, its own this court turns loose 606, 607, this court overruled its decision a murderer among convicted the law-abid in Superin- United States ex rel. Darcy v. Pennsylvania, ing citizens of a which County tendent of Prisons sub silentio re- him; expressly (2) has refused to harbor lying the decision the Court of also, I entertain doubt wheth considerable Appeals for the in Fourth Circuit San- impenitent Georgia er an administration Smyth, 138 derlin v. The F.2d 729. San- grieved deeply would be a decision case, however, point derlin in was not for permits Georgia which utilize the other to application in that case the for habeas penal “escaped” 47 states as colonies for its was made prisoners.1 to release the I nevertheless bow to ex imposed from a sentence situation; igencies state court better be it and the usual rule dangerous potentially exhaustion of state individual be set necessarily applied. remedies As degree impair- we have free than that least quick- It should not be assumed too into other states. flee As indications ly Georgia guarding Georgia, is zealous in attitude of I cite the follow- prisoners vigorously pressing ing: its for they escape (a) their extradition when court stated about holding in ren are correct Basic constitution- an individual’s ment of punishment did receive cruel and unusual permitted. al be Georgia, in I believe that alone should this opin with difficulty An initial assigned be as for not the reason me, John- how confronts majority ion of the enlargement. son’s before this record its only own ever, substitutes is that it .not court contains other factors which seem state inconclusive an finding of fact for pertinent to me to essential consider and below, but deems also of -the court ment whose, to fate our decision. possible than that other conclusion John ‘ determining we more than a convict- punishment suffered cruel son eyes Georgia ed murderer in the offi- True, Georgia. prior flight his from to Negro cialdom'. is a who has broken He “the known witnesses testified several imprisonment who has made virulent working the Geor concerning the facts against the officials and accusations white peti system at time of gia penal Georgia public camp. guards of works but, be sentence”; court tioner’s persuasive In absence of evidence professed to actual low, only witness one steps Georgia, reform in effective toward Johnson, and not chain- knowledge of how ingenuous expect I it think would be treated: general, prisoners accord to those authorities to I think himself. rights greater constitutional re- when Johnson’s truth may have told substantial well spect than court finds was conceded to this ordeals; his'chain-gang he described imprisonment. during ample had basis Johnson court I think the district therefore, position, This court is in a where fact; finding of á critical making such not, not, declare need and should why this court should but I no reason see remedy the drastic one here announced is province court below and invade been, will lie there whenever has credibility attached to be insist that John past, cruel and unusual infliction of testimony. It must be recalled that son’s punishment. I it sufficient we deem lay allegations proof the burden power to invoke our release an individual testimony is be whose Johnson, with only not has suffered who cruel and un- light in the has a vital in viewed grave usual but also faces outcome, and who terest danger very imminent of like abuse and by other courts.2 The disbelieved case at extra-legal means, possibly even death by particularly appropri me one bar seems Georgia. if he is returned procedure to the usual ate adherence nevertheless, finding If, leaving facts must this court choose past prospective instance. between of first violation of my right as ground nevertheless that .basic constitutional If I assume breth- escaped one, escaped Georgia prisoners were also convicts other happened Johnson. who same time be (b) One of those who testified Jail. concerning (d) treatment The State court below failed ex- n given Georgia chain-gang prisoners press position pe- its as to Johnson’s only fugitive tition, Moreland, court, also a Geor- the district but one justice. Judge Weiss, hearings gia court, Samuel A. also though both al- *9 rehearing directing in the order Court of Common Pleas the County, opinion specifically attorney Pennsylvania, invited an- this court the “to granting general appear petition Moreland’s for habeas amicus testimony corpus, a and file herein this of More- curiae to brief if he so recited “ * ** : the ob- desires.” land Warden departure Georgia, hisAt murder John- [Moreland’s] served his and trial objections; proceeded limited his to his that he son defense written made alleging Thomasville, Georgia, the homicide the statement was to town accidental; jury guilty but him he medical attention the found where received testimony jail supervision toAs Johnson’s local of murder. corpus hearing in then released the Court Chief Police. He Allegheny County, proceeded Atlanta, Georgia, Pleas of and Common Superior Pennsylvania having paid Court stat- bus fare the Chief “affirmatively the record shows of Police.” ed untrustworthy majority (e) notes, an As him be witness.” except page witnesses, other for 49 A.2d 197. Johnson’s prefer individual, gia county court, I should release an unlike that involved in I think place upon States, supra, Weems reliance latter. v. United so Thus, support view. the cases this erroneous as to entitle to dis- 459, 1947, Resweber, charge corpus. Consequently, Francis v. on habeas Supreme 422, 374, outstanding against him, only still 67 S.Ct. in- and entertained cidentally United States Court affected treatment he has upon received, claim that execu by prop- writs based is a valid determination erly-constituted constitute tion of would authority that be thereby punishment imprisoned unusual penalty cruel and for life. this be Could and, process; served, him while the deny due with observance of those constitu- prisoners retain, was not in either reason court unanimous tional cf. result, Reichard, 1944, ing Cir., all its members seem to me or Coffin v. F.2d concept 443, 445, 143, have endorsed think it A.L.R. I would may prevent courts threatened violations improper be both unwise and right here inv of a constitutional like that Pennsylvania to restrain from hon- Likewise, in Weems v. United oring request olved.3 a for his extra- 1910, 349, 544, U.S. dition. 19 Ann.Cas. position may readily be illustrated My Court, reversing judgment because the hypothetical us case. Let assume that placed rights, sentence violated bill individuals, Y, X indicted two upon great punishment which stress murder, charge judge trial impose upon sentence would Weems compels erroneously them to take the stand future; 366, 373, pages see 217 incriminating questions, and answer 19 Ann. X Y that both are convicted. Short- ju logic invoking the 705. The Cas. thereafter, state, escapes X ly to another power in dicial to eliminate a threatened appeals Y while and obtains a reversal of right vasion of a basic constitutional seems majority ruling Under the conviction. me irresistible. it, interpret spared possibil- I X is trial, since ities of extradition a new indicate, my foregoing As comments I right a fundamental constitutional was de- past infringe- grave have doubts whether him; again. while Y nied must face trial ment of constitutional Johnson’s incongruous result? If Is not this of itself entitle him to release. would Were added, however, it seems like- fact be Georgia actually peni- the state of loco required X Y will ly that or be at a new might tentiae, expected it well be that crim- against himself, again testify I trial inal and civil sanctions could and would be can reasons for a court to inter- see sound applied, by legal process in effective Y, vene, of either X behalf for- state, responsible those possible step it bid the which makes punishment cruel and unusual visited fresh violation be constitutional Birdsong, In re Cf. D.C.S.D.Ga. Johnson. consummated. 39 F. L.R.A. and Howard Arizona, stated, P. Ariz. the reasons I believe the For see, judgment 40 A.L.R. As far as I can how- of the court below should be va- ever, it is not contended that crudities of cause a deter- and the remanded for cated equivalent authorities were the whether has suffered mination pardon for of a the murder of and would be John- purposes undergo reasonably likely was convicted. For son similar abuse petition us, guilt Georgia, before or inno- were returned to the dis- Also, petition dependent position cence of is not issue. to be of his *10 findings. that the seems clear sentence of the critical Geor- those “ * * * proposed, punish page 481, page 385, 67 S.Ct. at proc 422; emphasis supplied. opin amounts ment to a violation Cf. of due page Keed, of law under the Constitution ess ion Mr. Justice U.S. at then must find 67 S.Ct. and last disposing concurring opinion means this ease Mr. some sentence pages Frankfurter, that will violate that Constitution.” Justice Burton, 471-472, Justice Mr.