State ex rel. Barbee v. Weatherspoon

• Decision Date: 28 February 1883
• Citation: 88 N.C. 19
• Court: North Carolina Supreme Court
• Parties: State ex rel. WILLIAM BARBEE and others v. H. WEATHERSPOON and others.

88 N.C. 19

State ex rel. WILLIAM BARBEE and others

v.H. WEATHERSPOON and others.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1881, of WAKE Superior Court, before Gilmer, J.

Defendants' demurrer to complaint sustained, and plaintiffs appealed.Messrs. T. R. Purnell and W. M. Busbee, for plaintiffs .

Messrs. Fowle & Snow and J. C. L. Harris, for defendants .

RUFFIN, J.

This action is brought to recover the penalty of twenty-five hundred dollars, given by the statute to any one who may be imprisoned or detained for a cause, for which he has been once delivered on a habeas corpus, and is before us upon an appeal taken from a judgment of the superior court, sustaining a demurrer to the complaint.

The case made by the complaint is as follows: In February, 1880, the feme plaintiff was arrested on a warrant and brought before the defendant, Weatherspoon, an acting justice of the peace for Wake county, charged with having aided and abetted one Anna Smith in an attempt to poison one Emma Scott. The justice took final jurisdiction of the matter, and holding the plaintiff to be guilty, sentenced her to an indefinite term of imprisonment.

Application in her behalf was made to Justice ASHE of the supreme court, who caused her to be brought before him by habeas corpus, and, declaring her imprisonment to be unlawful, directed her to be discharged therefrom, and accordingly the same was done.

Immediately thereafter the defendant, Barbee, who was also an acting justice in the county, issued another warrant for the plaintiff, wherein she was charged with the same offence as set forth in the former warrant, and directed the same to the defendant, Nowell, as sheriff of the county, who arrested and detained her thereon--this latter arrest being procured by the solicitations of the defendants, Weatherspoon and Scott.

The statute, which is substantially the same with the English act of 31, CHARLES II., provides, “that no person who has been set at large upon a writ of habeas corpus shall be imprisoned or detained for the same cause, by any person whatsoever, other than by the legal order or process of the court wherein he shall be bound by recognizance to appear, or of any other court havingjurisdiction in the case, under the penalty of two thousand five hundred dollars to the party aggrieved.” Bat. Rev., ch. 54, § 29.

According to its express terms, then, a party once discharged may be again arrested and imprisoned for the same cause, provided it be done by the legal order or process of a court of competent jurisdiction. The sufficiency in form of the second warrant, under which the plaintiff was...