Ex parte Bailey

• Decision Date: 26 October 1932
• Docket Number: 642.
• Citation: 166 S.E. 165,203 N.C. 362
• Parties: Ex parte BAILEY.
• Court: North Carolina Supreme Court

166 S.E. 165

203 N.C. 362

Ex parte BAILEY.

No. 642.

Supreme Court of North Carolina

October 26, 1932

Appeal from Superior Court, Jackson County; Walter E. Moore, Judge.

Proceeding in the matter of Ray Bailey, alias Ray Keith, on his application for a writ of habeas corpus. From a judgment directing petitioner's release from custody, an appeal is taken on behalf of the state of South Carolina, and a writ of certiorari issued to bring up the record.

Affirmed.

On May 5, 1932, a warrant was issued by a magistrate of Greenville county, S.C., charging that on May 1, 1932, Ray Bailey, alias Ray Keith, "did shoot, kill and murder one A. B Hunt" in the town of Greenville, S. C. The Governor of South Carolina duly made requisition upon the Governor of North Carolina, and on May 9, 1932, the Governor of North Carolina duly issued a warrant of extradition, requiring the arrest of said Bailey. Bailey was arrested on June 7, by the sheriff of Jackson county, and thereupon applied for a writ of habeas corpus. The writ was issued by Moore, J., on the 7th day of June, and was heard by him on the 27th day of June, 1932. At the hearing it appeared that Hunt had been killed in Greenville, S. C., at about 10:30 p.m. on the night of May 1st. A police officer of Greenville, S. C., who claimed to be present at the killing, testified positively to the identification of Bailey, and further testified that, in the gun battle between Bailey and police officers, resulting in the death of Hunt, Bailey had been shot by police officers and seriously wounded in the hand and abdomen. Another police officer of Greenville, S. C., who claimed to be present at the shooting, also positively identified Bailey as the man who killed Hunt. A merchant of Greenville, S. C., also identified Bailey as the slayer of Hunt.

Bailey offered evidence of many witnesses as to his whereabouts on the day of the killing, and further offered positive evidence from several disinterested witnesses that he was found shot down on the road between Burnsville and Asheville at about 10:30 o'clock on the night of May 1st. The place where the testimony showed that he was found lying in the road seriously wounded was approximately eighty-five miles from Greenville, S.C. The evidence for Bailey further tended to show that the persons who found him lying in the road seriously wounded, carried him to Asheville, and from thence he was then carried to a hospital at Sylva in Jackson county. Bailey testified that he had been shot by a companion on the night of May 1st, resulting from a quarrel over a poker game and offered testimony of disinterested witnesses tending to corroborate his statement. Bailey denied that he was in South Carolina on the day of the crime or that he had been in the state for some time prior thereto, and contended that he was charged with the crime merely because he had been found in a hospital seriously wounded early the next morning. There was further evidence to the effect that police officers of South Carolina had arrested other members of the Bailey family charging them with the murder of Hunt, and positively identifying them as present at the killing, and that, failing to offer at the hearing evidence of identity, they had all been discharged under writ of habeas corpus.

Bailey offered the evidence and affidavits of approximately twenty witnesses, and the state offered affidavits and testimony of twelve witnesses.

At the conclusion of the hearing, the record shows the following:

"By the Court: Gentlemen, I think there has been an issue raised here, I don't think I have a right to pass on, that of identity, and at the same time I don't think it would be fair to the defendant to send him to South Carolina to stand a trial, as it would be very expensive to him and his folks; under the testimony I don't think there would be a jury anywhere that would ever find him guilty beyond a reasonable doubt. I shall, therefore, discharge him under the writ and let him go.

"The respondents except to the rulings of the Court and hereby give notice in open Court of intention to appeal to the Supreme Court, and also give notice in open Court that respondents will make application to the Supreme Court for a Writ of Certiorari for the purpose of reviewing the record and rulings and findings of the Court."

Thereafter a formal judgment was entered as follows:

"This cause coming on to be heard and the same being heard before the undersigned Judge Resident of the 20th Judicial District of North Carolina, at Sylva, N. C., on this the 27th day of June, 1932, upon the petition and Writ of Habeas Corpus in this cause, and it appearing to the Court that a fugitive warrant was issued for Ray Bailey, alias Ray Keith, and that thereafter the Governor of North Carolina, upon request of the State of South Carolina, issued warrant of extradition for Ray Bailey, alias Ray Keith, and thereafter petition for Writ of Habeas Corpus was sworn out by the said Ray Bailey, and Writ of Habeas Corpus was thereupon issued, and the State of South Carolina appearing in court and being represented by Hon. J. G. Leatherwood, John M. Queen, Solicitor of the 20th Judicial District, and D. D. Alley; and the State of South Carolina having introduced its evidence, and the defendant, Ray Bailey, having introduced evidence, all of which appears in the record;

"Thereupon, the court finds as a fact:

"1. That Ray Bailey (alias Ray Keith) is a citizen and resident of the State of North Carolina.

"2. That he is not a fugitive from justice from the State of South Carolina, and was not present at the time of the commission of the alleged crime at Greenville, South Carolina.

"3. That the State of South Carolina has failed to show probable cause for holding the said Ray Bailey in custody, or that he committed the alleged crime--the murder of A. B. Hunt, and has failed to produce sufficient evidence to warrant the court in refusing the writ, and the court finding from all the evidence introduced in this cause that the petitioner is entitled to the relief sought in his petition and the Writ of Habeas Corpus;

"It is, therefore, upon motion of Clyde R. Hoey, G. D. Bailey, Dan K. Moore and Charles Hutchins, attorneys for the petitioner, considered, ordered, decreed and adjudged by the Court that the petition and writ be allowed and that the defendant be and he is hereby released from custody."

A petition was filed in the Supreme Court of North Carolina for a writ of certiorari to bring up the record, which was duly granted on the 31st day of August, 1932, and the record was duly certified by Judge Moore on September 13, 1932.

John M Daniel, Atty. Gen. of South Carolina, Cordie Page, Asst. Atty. Gen. of South Carolina, J. G. Leatherwood, of Greenville, and Queen & Alley, of Waynesville, for demanding State.

Clyde R. Hoey, of Shelby, G. D. Bailey, of Burnsville, Dan K Moore, of Sylva, and Charles Hutchins, of...