Moore v. Green

• Decision Date: 30 June 1875
• Citation: 21 Am.Rep. 470,73 N.C. 394
• Court: North Carolina Supreme Court
• Parties: ADOLPHUS G. MOORE v. GILBERT J. GREEN.

73 N.C. 394

21 Am.Rep. 470

ADOLPHUS G. MOORE

v.GILBERT J. GREEN.

Supreme Court of North Carolina.

June Term, 1875.

A defendant, who has been brought into Court on criminal process, and dischared from arrest under the same on bail, is not privileged from being arrested on civil process immediately afterwards, during the sitting of the Court and before he leaves the Court room.

An order of arrest in a suit for libel, does not violate section 16 of our Bill of rights, and is legal.

(The case of Dellinger v. Tweed, 66 N. C. Rep. 206, cited, commented on, and approved.)

This was a MOTION by the defendant, to vacate an order of arrest granted in a CIVIL ACTION brought by plaintiff against defendant for libel, returnable to Spring Term of ALAMANCE Superior Court, and heard before Kerr, J., at Chambers, during the Fall Term, 1874, of the Superior Court of Guilford county.

The defendant first moved his Honor to vacate his order for the arrest, and to discharge him from custody, on the ground that he was privileged from arrest.

The facts as found by his Honor, upon hearing this motion are as follows, to-wit:

On Monday of the Fall Term, 1874, of Guilford Superior Court, his Honor, upon the affidavit of the plaintiff, as prosecutor, issued a bench warrant, commanding the arrest of the defendant, and that he be brought before him at the Court House in Greensboro', on Wednesday of said term, to answer the criminal charge of libel, published in Guilford and also in Alamance counties. On Wednesday, the sheriff of Alamance, in obedience to the order, produced the defendant before his Honor in open Court, for an examination into the charge made against him. The defendant waived an examination as to the facts and submitted to be bound over to Court to answer, &c. His Honor ordered the defendant into the custody of the sheriff of Guilford, until he should enter into a recognizance in the sum of one thousand dollars, with good and sufficient sureties, conditioned for his appearance at the next term o?? said Court, and in like manner, for his appearance at the Spring Term, 1875, of Alamance Superior Court.

Before the required recognizances were given, the Court took a recess, and upon the meeting again, the recognizances were given, and the defendant, by order of his Honor, was discharged. At the time, the defendant was in custody, in the bar of the Court.

As soon as the defendant was discharged, the sheriff of Guilford county sat down by him in the bar, and served upon him a summons in this civil action of the plaintiff, and also a copy of the order of arrest therein, made out and signed by the clerk of Guilford Superior Court; and under said warrant of arrest, which had been issued by his Honor, the presiding Judge, the sheriff held the defendant in custody.

The defendant moved to vacate the order of arrest and to be discharged therefrom, continuing in custody until Saturday night, at which time he gave bail. On the ensuing Monday the motion was heard by his Honor, and refused, whereupon the defendant appealed.

Seott & Caldwell, and Merrimon, Fuller & Ashe, for appellant .

Gilmer and J. T. Morehead, contra .

RODMAN, J.

Two questions of some importance are presented by the record in this case:

1. Was the defendant privileged at the time of his arrest? The authorities which have been found on this point are very few, but they are very respectable and we consider them decisive. They establish a distinction between parties who are attending Court prosecuting civil actions and persons who have been brought into Court on criminal process and have been discharged from arrest under it.

In Hare v. Hyde, 16 Adol. and Ellis., et, seq. 304, (71 E. C. L. Rep. 373,) the defendant Hyde had been tried for embezzlement and acquitted and discharged. Immediately afterwards and before leaving the Court room, and whilst the Court was still sitting, he was arrested on a ca. sa. On the hearing of a motion for his discharge, Lord CAMPBELL, C. J., said: “I am of opinion that the defendant had no privilege in respect of his having been tried and acquitted and ordered to be discharged. He was after that, in the same position as any other of the circumstantes in Court. The cases show that an acquitted prisoner has no privilege redeundo; and it follows that while remaining as a spectator, he has no privilege more than any one else.” This rule must...