In Re Croom.

• Decision Date: 01 May 1918
• Docket Number: (No. 274.)
• Citation: 95 S.E. 903
• Parties: In re CROOM.
• Court: North Carolina Supreme Court

95 S.E. 903

In re CROOM.

(No. 274.)

Supreme Court of North Carolina.

May 1, 1918.

Petition by Lee Croom for certiorari to review a judgment in habeas corpus refusing to discharge petitioner from custody. Petition denied.

This is a petition for a certiorari, in lieu of an appeal, to review a judgment on a writ of habeas corpus, refusing to discharge the defendant from custody. The facts set forth in the petition are as follows:

(1) At January term, 1915, of the superior court of Pender county, the petitioner, Lee Croom, entered a plea of guilty to an indictment charging him with an assault with a deadly weapon, and he was sentenced to a term of imprisonment of six months in jail and assigned to work on the public roads of Sampson county, capias to issue on February 15, 1915.

(2) The capias was issued on said judgment on February 15, 1915, but the petitioner was not arrested thereunder.

(3) That at March term, 1917, of said court, it being made to appear that the petitioner had served no part of his term of imprisonment and was at large, another capias issued, and the defendant was arrested and began his term of imprisonment.

(4) That the petitioner thereupon sued out a writ of habeas corpus before Bond, J., which was duly heard, but no order or judgment was rendered thereon, although the petitioner was not required to begin serving his term.

(5) That thereafter another capias was issued against the defendant and he was taken into custody, and he then applied for the writ of habeas corpus before Lyon, J., who, after hearing the matter, refused to discharge the petitioner, holding that he was lawfully in custody under the judgment of January term, 1915.

(6) That the petitioner thereupon offered to appeal from the said judgment of Judge Lyon, but he was refused this right upon the ground that his remedy to review his judgment was by certiorari, and thereupon this petition for certiorari has been filed in this court.

McClammy & Burgwin, of Wilmington, for petitioner.

J. S. Manning, Atty. Gen., and R. H. Sykes, Asst. Atty. Gen., for the State.

ALLEN, J. [1] 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, 69 S. E. S72), 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. Railroad, 125 N. C. 17, 34 S. E. 100. 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, § 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...