State v. Rhoades

172 S.E.2d 235, 7 N.C. App. 388, 1970 N.C. App. LEXIS 1697

• Court: Court of Appeals of North Carolina
• Decided: February 25, 1970
• Docket: No. 7023SC138
• Status: Published

Opinion

BROCK, J.

This is an attempted appeal from an order entered at the conclusion of a habeas corpus hearing to inquire into the legality of defendant’s restraint under extradition proceedings instituted by the State of Texas.

“Except in cases involving the custody of minor children, G.S. 17-40 [repealed in 1967 but reprovided by G.S. 50-13.5 (b) (2) ], no appeal lies from a judgment rendered on return to a writ of habeas corpus. In re Steele, 220 N.C. 685, 687, 18 S.E. 2d 132, 134, and cases cited; In re Renfrow, supra [247 N.C. 55, 59, 100 S.E. 2d 315, 317]. The remedy, if any, is by petition for writ of certiorari, addressed to the sound discretion of the appellate court. In re Lee Croom, 175 N.C. 455, 95 S.E. 903.” State v. Lewis, 274 N.C. 438, 441, 164 S.E. 2d 177. See also, In re Palmer, 265 N.C. 485, 144 S.E. 2d 413; State v. Burnette, 173 N.C. 734, 739, 91 S.E. 364; In re Wilson, 3 N.C. App. 136, 164 S.E. 2d 56; State v. Green, 2 N.C. App. 391, 163 S.E. 2d 14; 2 McIntosh, N.C. Practice 2d, § 2464(9). The same rule applies to hearings on return to writs of habeas corpus in extradition proceedings. In re Malicord, 211 N.C. 684, 191 S.E. 730; In re Guerin, 206 N.C. 824, 175 S.E. 181; In re Bailey, 203 N.C. 362, 166 S.E. 165; In re Hubbard, 201 N.C. 472, 160 S.E. 569.

As an attempted appeal, the same must be dismissed. However, we have considered the record and brief as a petition for writ of certiorari, and, after reviewing the record, we deny the same.

Appeal dismissed.

Petition denied.

Britt and Graham, JJ., concur.