In re Schenck

• Decision Date: 31 January 1876
• Citation: 74 N.C. 607
• Parties: In re JOHN SCHENCK.
• Court: North Carolina Supreme Court

74 N.C. 607

In re JOHN SCHENCK.

Supreme Court of North Carolina.

January Term, 1876.

The power to issue the writ of habeas corpus is denied to the Supreme Court and any Judge thereof, or to the Superior Courts, by the express provision of Bat. Rev. chap. 54, where the applicant is detained by virtue of a final judgment of a court of competent jurisdiction?? The application must be refused, even where it appears that the applicant is imprisoned in the State's prison, and the sentence of the court is erroneous; and the applicant, in default of appeal, must be left to his remedy by writ of certiorari.

( Childs v. Martin, 69 N. C. Rep. 126, cited and approved.)

PETITION for a writ of habeas corpus, heard before this court at this term.

All the facts necessary to an understanding of the case are stated in the opinion of the court.

Attorney General Hargrove, for the State .

Battle, Battle & Mordecai, for the petitioner .

BYNUM, J.

In the matter of Schenck. The petition in this case was filed before me, and as it is case of much importance and public concern, I asked the assistance and advice of all the Justices of the Supreme Court. The case was accordingly argued before the whole court by the Attorney General on behalf of the State, and by Mr. R. H. Battle for the petitioner. With the advice and concurrence of all the Judges, the motion was denied and the following opinion filed:

This is an application for a writ of habeas corpus, upon the following state of facts:

At the Fall Term, 1875, of the Superior Court of Lincoln county, the petitioner, John Schenck, was indicted for an assault and battery upon the body of one Alexander Schenck. At the same term of the court, the defendant appeared and submitted, and was by the court sentenced to two years imprisonment at hard labor in the penitentiary, where he now is, undergoing his punishment. The record shows that the penitentiary was substituted by the court, (instead of the common jail, I presume,) “by the consent and choice of the defendant.”

The petitioner alleges that this judgment is illegal, in that the law confers upon the court no power to impose such a sentence for such an offence. That punishments in this State are regulated by statute; and that by a proper construction of sections 29, 108 and 111, chap. 32, of Bat. Rev. the punishment of misdemeanors of this class, is limited to fine and imprisonment in the county jail, one or both. And such would seem to be the law. It follows that no consent of the defendant can confer a jurisdiction which is denied to the court by the law, and that any punishment imposed, other than that prescribed for the offence is illegal.

But admitting that the petitioner is illegally confined, is he entitled to relief by this proceeding before me? I think he is not, and the application must be denied.

The power to issue the writ of habeas corpus is derived from the Constitution, Art. 1, sec. 18, and the Act of the Legislature for enforcing that provision, Bat. Rev. chap. 54, sec. 2 and sub. sec. 4, which is as follows: “The application for the writ shall be in writing, signed by the applicant.

1. To any one of the Judges of the Supreme Court.

2. To any one of the Superior Court Judges, either at term time or in vacation.”

It is thus plainly seen that a single Judge of the Supreme Court has the same and no other jurisdiction to issue the writ than a Judge of the Superior Court, and by reference to the same section of Bat. Rev. chap. 54, sec. 2, it becomes equally plain that the same limitation of power to issue the writ in certain cases, extends equally to the two classes of Judges, to-wit: “The application to prosecute the writ shall be denied in the following cases, * * * * * Where persons are committed or detained by 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.” The Superior Court is a court of competent jurisdiction of the person and offence of the petitioner, and by the terms of the statute, no writ of habeas corpus lies against its final judgment. The petitioner had his day in that court, and if he was aggrieved by the judgment he had the remedy and the opportunity of appeal to the court of last resort. This is the prescribed and regular course of procedure, from which there is and can be, from the very necessity of the case no departure.

So far as the law goes, to secure the citizen the full benefit of the right of appeal, even in cases...