In Re Holley.

• Decision Date: 23 December 1910
• Citation: 69 S.E. 872,154 N.C. 163
• Parties: In re HOLLEY.
• Court: North Carolina Supreme Court

69 S.E. 872

154 N.C. 163

In re HOLLEY.

Supreme Court of North Carolina.

Dec. 23, 1910.

1. Habeas Corpus (§ 114^*)—Judgment—Review—Method.

Under Const, art. 4, § 8, giving the Supreme Court power to issue remedial writs necessary to give it general supervision and control over inferior courts, and Revisal 1905, § 1854, giving an appeal from a judgment in habeas corpus only in cases involving the custody of children, a judgment in habeas corpus for the discharge of one sentenced on conviction of crime, denying relief and remanding accused to custody, is reviewable on certiorari.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 116; Dec. Dig. § 114.*]

2. Constitutional Law (§ 321*)—Judgment —Review.

Revisal 1905, §§ 1822, 1827, 1848, requiring denial of a writ of habeas corpus where the petitioner is detained under a final judgment of a competent tribunal, etc., refer only to judgments warranted by law applicable to the facts, and where the court had no jurisdiction of the case and it was manifestly without power to impose the sentence, there is no final sentence of a competent tribunal, and the statutes so construed do not infringe Const, art. 1, § 18, giving every person restrained of his liberty a remedy.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 321.*]

3. Habeas Corpus (§ 28*) — Questions Reviewable.

Where a convicted criminal is detained under a sentence not authorized by law, he is entitled to a hearing on habeas corpus, though the sentence merely extends in duration beyond what the law permits, and after serving the lawful part of the sentence he may be relieved from further punishment, but the court on habeas corpus will not review mere errors.

[Ed. Note.—For other cases, see Habeas Corpus, Dec. Dig. § 28.*]

4. Larceny (§ 88*)—Statutes—Punishment.

Under Revisal 1905, §§ 3500, 3506, abolishing the distinction between petit and grand larceny, and declaring that in cases of hardened offenders, the court may sentence the offender to the state's prison for not exceeding 10 years, and that in case of the larceny of property not exceeding $20 in value the punishment shall for the first offense not exceed imprisonment for 1 year, the value of the property stolen is not an essential ingredient of larceny, and a statement of the value in the indictment is not conclusive on the question of punishment, but only matter in amelioration of the punishment, to be determined at the instance of accused, and where one was convicted of larceny under an indictment alleging the value of the stolen property at $10 while the property was actually worth over $250, and he had been previously convicted of other offenses, a sentence of imprisonment for five years and assignment to work on the public roads was authorized.

[Ed. Note.—For other cases, see Larceny, Dec. Dig. § 88.*]

5. Larceny (§ 88^2-*)—Statutes—Punishment.

At common law petit larceny was deemed infamous, and except as modified by Revisal 1905, §§ 3500, 3506, relating to the punishment for larceny, the punishment must in all cases be not less than four months and not more than 10 years as provided in sections 3292, 3293.

[Ed. Note.—For other cases, see Larceny, Cent. Dig. § 214; Dec. Dig. § 88.*]

Manning, J., dissenting.

Application for habeas corpus by Tinner Holley. There was a judgment denying relief, and the Supreme Court issued certiorari to review the proceedings and judgment. Affirmed.

Certiorari to review proceedings in habeas corpus, heard before Associate Justice Walker, at chambers, in Raleigh, on December 12, 1910. On the hearing it was made to appear: "That at June term, 1909, in the criminal court of Guilford county, the petitioner was tried and convicted upon an ordinary indictment for larceny of some clothing from the Southern Railway Company, and in which indictment the value of the goods stolen was alleged to have been $10, certified copy of said indictment No. 131 being set out in the petition for writ of habeas corpus hereunto attached. In pronouncing sentence for this offense the following record was made by his honor, Judge B. F. Long: 'It having been made to appear in this case that the goods stolen were worth between $250 and $300, and the defendant, Tinner Holley, having been convicted in No. 10 of shooting a man and in No. 97 of retailing, and in No. 100 of larceny on this docket, it is adjudged by the court that the defendant be imprisoned in the county jail for a term of five years and assigned to work during imprisonment on the public roads of Guilford county.' Judgment was suspended in No. 10 for shooting a man, in No. 97 for retailing, and in No. 100 for larceny, but all of these cases have gone off the docket, and neither these cases nor any others are on the criminal docket of Guilford county against the petitioner, as appears from the record hereunto attached. At the conclusion of the June term, 1909, of the criminal court, the petitioner began the service of his term upon the roads of Guilford county, and from that time until now petitioner has been and still is upon the roads of Guilford county, except for the last month, when he has been removed to the Guilford county jail on account of illness." Upon these facts there was judgment that the prisoner be not discharged, and he was thereupon remanded and is now held in custody under the sentence. Thereupon a writ of certiorari was issued from this court in review of the proceedings and judgment, formal application therefor having been duly waived.

The Attorney General, for plaintiff.

Stern & Stern and Hudson & Swift, for defendant.

HOKE, J. (after stating the facts as above). Our statute law has made no provision for appeal from a judgment in habeas corpus proceedings, except in cases concerning the care and custody of children. Revisal 1905, § 1854. Therefore it is that when on such a hearing a question of law or legal inference is presented, and the judgment therein involves the denial of a legal right, it may be reviewed by certiorari under and by virtue of the power conferred on this court by the last clause of section 8, art. 4, of our Constitution: "And the court shall have power to issue any remedial writs necessary to give it general supervision and control over the proceedings of the inferior courts." This has been expressly held with us in several decisions, as in State v. Herndon, 107 N. C. 934, 12 S. E. 268, State v. Miller, 97 N. C. 451, 1 S. E. 776, and State v. Lawrence, 81 N. C. 522, and the procedure in the present case has been very properly made to conform to this ruling. The cause, then, being regularly before us, our statute on habeas corpus contains, among others, the following provisions, as more directly relevant to the question presented:

"Sec. 1822. Application to prosecute the writ shall be denied in the following cases: 'Subsec. 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 or by virtue of an execution issued upon such final order, judgment or decree, " etc.

"Sec. 1827. Any court or judge, empowered to grant the writ, to whom such application may be presented, shall grant the writ without delay, unless it appear from the application itself or from the documents annexed that the person applying or for whose benefit it is intended, is by this chapter prohibited from prosecuting the writ."

"Sec. 1848. It shall be the duty of the court or judge forthwith to remand the party, if it appear that he is detained in custody, either: * * * Subsec. 2. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction or of execution issued upon such judgment or decree."

A perusal of these sections quoted will show that where it appears from the application itself, or the documents annexed thereto, that the petitioner is held under a final judgment of a competent tribunal, the writ will be denied, and when such fact is disclosed on the hearing the petitioner must be remanded. In construing this term "final judgment or decree of a competent tribunal, " it has come to be well understood that the exception refers only to judgments warranted by the law applicable to the case in hand, and where it appears from an inspection of the record proper and the judgment itself that the court had no jurisdiction of the cause, and was manifestly without power toenter the judgment or impose the sentence in question in such case, there would be no final sentence of a competent tribunal, and the exception established by the statute does not obtain. State v. Queen, 91 N. C 659; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207; Ex parte Lange, 85 U. S. 163, 21 L. Ed. 872; In re Lackey, 6 S. D. 526, 62 N. W. 134. To hold otherwise would in effect subject this great writ—the most important, perhaps, in our system of government, having its origin long prior to Magna Charta—to a question of form and procedure, and render it of little avail for the relief of a citizen imprisoned contrary to the law of the land. The lawmakers no doubt had this interpretation in view when they used the words "competent tribunal, " and if they had intended otherwise the provision would have been unconstitutional, for the writ of habeas corpus, as understood and acted on, has prominent place in our organic law. Article 1, § 18. In recognition of this principle it has been frequently held that, where a convicted criminal is detained under a sentence not authorized by law, he is entitled to be heard, and when, though authorized in kind, it extends in duration beyond what the law expressly permits, after serving the lawful portion of the sentence, he may be relieved from further punishment, the excess being considered and dealt with as void. U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. 631; Ex parte Erdmann, 88 Cal. 579, 26 Pac. 372. While the right to relief in the cases...