In Re Croom

95 S.E. 903, 175 N.C. 455, 1918 N.C. LEXIS 93

• Court: Supreme Court of North Carolina
• Decided: May 1, 1918
• Status: Published

Opinion

AlleN, J.'

His Honor held correctly that an appeal would not lie from his judgment refusing to discharge the defendant from custody (In re Holley, 154 N. C., 163), and the remedy, if any, is by a petition for a writ of certiorari, which is addressed to the sound discretion of the Court. Ice Co. v. R. R., 125 N. C., 17.

If this was not the rule, the criminal law could not be administered, and it would be with difficulty that any judgment of imprisonment could be executed', as the writ of habeas corpus always issues when legally applied for, because the statute (Revisal, sec. 1828) subjects a judge who refuses to entertain the petition to a penalty of $2,500, and if his judgment can be reviewed by appeal, or if the certiorari issues as of right, the sentence of imprisonment might be suspended indefinitely between the Superior and the Supreme Court.

We must then examine'the petition for the certiorari, and when we do so we find that the petitioner is in custody under a judgment of the Superior Court, which has never been performed, and which was regularly entered in a criminal action of which the court had jurisdiction, and that this judgment has not been set aside or modified.

The power to enter the judgment is not contested, and when this power is conceded, it follows that the petitioner was not entitled to be discharged, as the Revisal, sec. 1822, provides that application to prosecute the writ of habeas corpus shall be denied “2. Where persons are committed or detained by virtue of the final order, judgment, or decree of a competent tribunal of civil or criminal jurisdiction.”

The judgment as entered upon the record imports verity and neither Judge Bond nor Judge Lyon had authority to hear evidence in a collateral proceeding tending to impeach it, nor could they refuse to deal with it as valid and binding, and their action in the premises was controlled by this principle.

The practice upon petitions for the writ of habeas corpus is stated very clearly and accurately by Justice Solee in the Holley case, in which he says, at p. 169: “It would produce inextricable confusion to permit one judge of equal and concurrent jurisdiction to question and interfere with the final judgments of another or to deal with such hearings on any other principle. And in determining this question of power the court is confined, as heretofore stated, to the record proper and the j ndgment itself. It is not permitted that the testimony or the rulings therein should be examined into, nor that matters fairly in the discretion of the presiding judge should be reviewed, or that judgments erroneous in the ordinary acceptation of the term should be questioned. The hearing is confined to the record and judgment, and relief may be afforded only when on the record itself the judgment is one clearly and manifestly beyond the power of the court, a statement of the doctrine supported in numerous and authoritative decisions here and elsewhere. Ex parte McCown, 139 N. C., 95; In re Schenck, 74 N. C., 607; In re Swan, 150 U. S., 637; In re Coy, 127 N. C., 731.”

The petition for the certiorari is, therefore, .denied because it appears upon the face of the petition that the petitioner is not entitled to his discharge.

Petition denied.