In re Brittain
| Citation | 93 N.C. 587 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 October 1885 |
| Parties | IN THE MATTER OF JOHN BRITTAIN. |
OPINION TEXT STARTS HERE
This was an application to the Supreme Court for a habeas corpus, and also for a certiorari, heard at October Term, 1885.
The facts are fully set out in the opinion.
The Attorney General, for the State .
The application of the petitioner, is for the two-fold purpose of obtaining the writ of habeas corpus, directed to John A. Lackey, sheriff of Burke county, in whose custody the prisoner is alleged to be, commanding said sheriff to bring his body before this Court, to the end that the lawfulness of his imprisonment may be inquired of; and also that a writ of certiorari may issue to the clerk of the Superior Court of that county, requiring him to send up a transcript of the record of the proceedings in which the imprisonment was adjudged, that the same may be reviewed.
Upon an examination of the petition, we find two insuperable obstacles in the way of granting the writ of habeas corpus.
1. It states that the prisoner was sentenced to be imprisoned for a period of six months, upon his conviction for an assault and battery committed by him, and in pursuance thereof, was by said Court, committed to the custody of the sheriff, and is now undergoing said punishment.
The statute in express terms refuses the application in cases, “when persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction.” The Code, §1624, par. 2.
2. The petition fails to allege “that the legality of the imprisonment or restraint has not been already adjudged upon a prior writ of habeas corpus, to the knowledge or belief of the applicant,” as required by §1627, par. 4.
As an application for the writ of certiorari, it must also be denied. Aside from the fact that no explanation is given of the failure to bring up the case by appeal when judgment was pronounced, we are clearly of opinion that the case made in the petition has no merits, and is entirely unsupported in the rulings to which we have been referred. Ex parte Lange, 18 Wall., 163, and State v. Warren, 92 N. C., 825.
In the latter case, judgment of imprisonment was rendered at one term, and after partial confinement, the prisoner was called into Court, and as we interpret the record, the residue of the punishment remitted on certain terms, accepted and carried into...
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State v. Calcutt, 433.
...further evidence, in open court, both as to the facts of the case and as to the character and conduct of the defendant. In re Brittain, 93 N.C. 587; State v. Manly, 95 N.C. 661; State v. Stevens, 146 N.C. 679, 61 S.E. 629; Cook v. Tel. Co., 150 N.C. 428, 64 S.E. 204." In the instant case, t......
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State v. Calcutt
...... make such changes and modifications in them as he may deem. wise and appropriate for the administration of justice, and. to this end he may hear further evidence, in open court, both. as to the facts of the case and as to the character and. conduct of the defendant. In re Brittain, 93 N.C. 587; State v. Manly, 95 N.C. 661; State v. Stevens, 146 N.C. 679, 61 S.E. 629; Cook v. Tel. Co.,. 150 N.C. 428, 64 S.E. 204.". . . In the. instant case, the Judge made certain modifications in the. sentence before the expiration of the term of Court. The. ......
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In Re Adams.
...against him upon a prior writ of habeas corpus issued at the instance of petitioner upon the same ground. C.S. §§ 2206, 2209; In re Brittain, 93 N.C. 587. For the reasons stated the order of the Judge below discharging the petitioner from custody must be ...
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In re Adams
...against him upon a prior writ of habeas corpus issued at the instance of petitioner upon the same ground. C.S. §§ 2206, 2209; In re Brittain, 93 N.C. 587. For reasons stated the order of the Judge below discharging the petitioner from custody must be reversed. ...