Renfrow, In re

• Decision Date: 30 October 1957
• Docket Number: No. 146,146
• Citation: 247 N.C. 55,100 S.E.2d 315
• Parties: In re Benjamin Edgar RENFROW. STATE v. RENFROW.
• Court: North Carolina Supreme Court

Page 315

100 S.E.2d 315

247 N.C. 55

In re Benjamin Edgar RENFROW. STATE v. RENFROW.

No. 146

Supreme Court of North Carolina.

Oct. 30, 1957

William E. Craft, Kenansville, and Carl V. Ventrs, Jacksonville, for defendant, appellant.

Atty. Gen. George B. Patton and Asst. Atty. Gen. Harry W. McGalliard, for the State.

BOBBITT, Justice.

Except in cases involving the custody of minor children, G.S. § 17-40, no appeal lies from a judgment rendered on return to a writ of habeas corpus. In re Steele, 220 N.C. 685, 687, 18 S.E.2d 132, and cases cited. The remedy, if any, is by petition for a writ of certiorari, addressed to thesound discretion of this Court. In re Lee Croom, 175 N.C. 455, 95 S.E. 903.

Under the rules stated, petitioner's purported appeal would be dismissed. However, to clarify the important question of practice presented by the record, this Court deems it appropriate to treat petitioner's purported appeal as a petition for writ of certiorari. Art. IV, sec. 8, Constitution of North Carolina; State v. Burnette, 173 N.C. 734, 739, 91 S.E. 364. So treated, the petition is allowed; and we consider the questions presented as upon return to our writ of certiorari.

The sole question for determination upon habeas corpus hearing for alleged unlawful imprisonment is whether petitioner is then being unlawfully deprived of his liberty. In re Swink, 243 N.C. 86, 92, 89 S.E.2d 792; In re Young, 222 N.C. 708, 24 S.E.2d 539; In re Parker, 144 N.C. 170, 56 S.E. 878; 25 Am.Jur., Habeas Corpus sec. 2; 39 C.J.S. Habeas Corpus § 4. In this connection, it is noted that the writ of habeas corpus, a 'high prerogative writ,' is to be made returnable at a certain time and place specified therein; and the particular judge before whom it is returnable need not be either the resident or the presiding judge of a particular judicial district or the presiding judge at any particular term of court. McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684.

It appears that the April 1, 1957, Criminal Term, of Duplin, adjourned April 2, 1957, the very day the clerk received this Court's certificate of its affirmance of the judgment pronounced at August Term 1956; and that petitioner's said motion was made April 5, 1957, the very day he was to make his appearance at said April 1st Criminal Term, 1957. Uuquestionably, his said motion was made in apt time. State v. Casey, 201 N.C. 620, 161 S.E. 81; State v. Cox, 202 N.C. 378, 162 S.E. 907; State v. Moore, 202 N.C. 841, 163 S.E. 700; State v. Lea, 203 N.C. 316, 166 S.E. 292; State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Smith, 245 N.C. 230, 95 S.E. 2d 576; State v. Mooring, 245 N.C. 698, 97 S.E.2d 117.

Petitioner's position, as asserted in his petition for writ of habeas corpus, was that he was entitled to be at liberty under bond pending the hearing at August Term, 1957, of his motion for a new trial on the ground of newly discovered evidence.

Petitioner did not request or consent that Judge Morris hear this motion at the April 22nd Civil Term, 1957. On the contrary, prior to the hearing by Judge Morris, petitioner insisted that this motion was for hearing and determination at the August Term, 1957.

The sole question presented at the hearings before Judge McKeithen and Judge Morris on return to writ of habeas corpus was whether petitioner was then unlawfully imprisoned. Nothing in the record indicates that petitioner's motion for a new trial on the ground of newly discovered evidence had been set for hearing either before Judge McKeithen or before Judge Morris. It is noted that Judge McKeithen's order, transferring the matter for hearing by the presiding judge at the April 22nd Civil Term, 1957, of Duplin, simply allowed the petitioner to be at liberty under bond pending further hearing on return to the writ of habeas corpus Petitioner's assignments of error are directed to the order of Judge Morris.

Except as otherwise provided, each term of superior court 'shall continue in session one week, and be for the trial of criminal and civil cases * * * unless the business thereof shall be sooner disposed of.' G.S. § 7-70. Thus, except as otherwise provided, each term of court is a combination or mixed term, that is, a term for the trial of both criminal and civil cases. But G.S. § 7-70 expressly provides otherwise as to many specific terms of court.

With reference to Duplin County, G.S. § 7-70, in pertinent part, provides: (1) That the term referred to herein as the April 1st Criminal Term, 1957, was a term to commence 'the fourth Monday after the first Monday in March to continue one week for the trial of criminal cases only.' (2) The term referred to herein as the April 22nd Civil Term, 1957, was a term to commence 'the seventh Monday after the first Monday in March to continue one week for the trial of civil cases only.' (3) The term referred to herein as the August Term, 1957, was a term to commence 'the first Monday before the first Monday in September'; and this term, because not otherwise provided, was a term for the trial of both criminal and civil cases.

G.S. § 7-73 provides: 'No criminal business at civil terms.--No grand juries shall be drawn for the terms of court designated by law as being for the trial of civil cases exclusively, and the solicitors shall not be required to attend upon any exclusively civil terms, unless there are cases on the civil docket in which they officially appear, and no criminal process shall be returnable to any term designated for the trial of civil actions alone.'

Provisions now incorporated in G.S. § 7-73 may be traced to secs. 3 and 7 of Ch. 28, Public Laws of 1901; and provisions now incorporated in G.S. § 7-70, including the designation of certain terms 'for the trial of civil cases only,' may be traced to other sections of said 1901 Act. Provisions of secs. 3 and 7 of said 1901 Act were codified as sec. 1508, Revisal of 1905, and as sec. 1445, Consolidated Statutes of 1919, and as G.S. § 7-73. It is noteworthy that sec. 1508, Revisal of 1905, bears the caption, 'No grand jury drawn nor criminal process returnable to or solicitors attend, civil terms'; but, when the General Assembly adopted the Consolidated Statutes of 1919, the caption was changed to that now appearing in G.S. § 7-73, to wit, 'No criminal business at civil terms.' It is noted further that said Act of 1901, also an amendatory statute, to wit, Ch. 196, Public Laws of 1913, contained the provision 'that no criminal process shall be returnable to any term designated in this act for the trial of civil actions alone.' (Italics added.) Moreover, sec. 1508, Revisal of 1905, contained the provision that 'no criminal process shall be returnable to any term designated in this chapter for the trial of civil actions alone.' (Italics added.) It is obvious that G.S. § 7-70 and G.S. § 7-73 are parts of one pattern and are to be construed in pari materia.

When G.S. § 7-70 and G.S. § 7-73 are so construed, the legislative intent is clear, and we so hold, that a motion which, if allowed, would set aside a verdict and judgment in a case on the criminal docket, specifically, a motion for a new trial on the ground of newly discovered evidence, may not be determined at a term, such as the April 22nd Civil Term, 1957, of Duplin, expressly restricted by statute as a term 'for the trial of civil cases o...