EX PARTE BAER, Civ. A. No. 11087.

• Decision Date: 16 March 1948
• Docket Number: Civ. A. No. 11087.
• Citation: 76 F. Supp. 295
• Parties: Ex parte BAER et al.
• Court: U.S. District Court — District of New Jersey

76 F. Supp. 295

Ex parte BAER et al.

Civ. A. No. 11087.

District Court, D. New Jersey.

March 11, 1948.

As Amended March 16, 1948.

Crummy & Consodine and William Consodine, all of Newark, N. J., for petitioners.

Horace K. Roberson, of Bayonne, N. J., and William P. Gannon, and Thomas F. Meehan, both of Jersey City, N. J., for Warden of Penitentiary of Hudson County and for Daniel T. O'Regan, County Council.

FAKE, District Judge.

The issues here arise in a habeas corpus proceeding. The writ was allowed. The petitioners were brought before the Court. Evidence was adduced. Oral arguments were heard and written briefs were filed. It is now the duty of the court either to sustain or quash the writ.

At the September Term of the Hudson County Grand Jury, in the year 1942, a conspiracy indictment was handed down, charging these four petitioners with having bribed three public officials of the City of Bayonne in the purchase of certain motor equipment. Shortly thereafter these petitioners, fully protected by the advice of counsel, entered pleas of guilty to said indictment and made voluntary sworn statements, in writing, tending to incriminate the public officials, whereupon the then presiding County Judge sentenced each of these petitioners to imprisonment for one year and suspended the operation of the sentences. The three officials entered pleas of not guilty, and things remained in this posture until April, 1946, when two of the officials were brought before the court for trial. It then appeared that the statements made by petitioners had disappeared from the files and these petitioners, when called as witnesses, recanted, refusing to testify in conformity with their prior statements. Whereupon, the then presiding judge was compelled to direct a verdict freeing the public officials. Shortly thereafter these petitioners were brought before the Court. The suspensions of their sentences were revoked and they were incarcerated to serve the year originally imposed upon them. It is noted in this connection that these petitioners were then, upwards of three years after the date of their original sentence, called on to serve time. This, and other factors appearing on the face of the record before me, raised questions as to the validity of their incarceration. All the problems thus raised, however, were cognizable in the State Courts under the law of the State and could have been adjudicated in the State Supreme Court. No appeals or writs of error were resorted to by them, however. Rather, they chose to and did sue out a writ of habeas corpus in the New Jersey Court of Chancery. In that proceeding the Vice Chancellor wrote an opinion quashing the writ, 139 N.J.Eq. 364, 51 A.2d 203. An appeal was then taken to the Court of Errors and Appeals, the Court of last resort in the State. That court handed down an opinion sustaining the Vice Chancellor, 140 N.J.Eq. 571, 55 A.2d 248.

At the time when the writ of habeas corpus was applied for in this court, time limitations had run against these petitioners and all avenues of appeals to higher courts were closed to them.

Nothing else appearing, this court would quash the pending writ for failure to pursue the remedies available in the State Courts, and for failure to apply to the United States Supreme Court by way of certiorari from the opinion of the Court of Errors and Appeals: Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Pelley v. Colpoys, 73 App.D.C. 395, 122 F.2d 12; Gordon v. Scudder, 9 Cir., 163 F.2d 518; Commonwealth v. Burke, D. C., 74 F.Supp. 846.

However, counsel for petitioners relies on certain language used by the United States Supreme Court in White v. Ragen, 324 U.S. 760, at page 765, 65 S.Ct. 978, 89 L.Ed. 1348, which has caused me to proceed more cautiously. It appears in that case that if the remedy of habeas corpus is...