State v. Burnette

• Decision Date: 21 February 1917
• Docket Number: (No. 1.)
• Citation: 91 S.E. 364
• Court: North Carolina Supreme Court
• Parties: STATE v. BURNETTE.

91 S.E. 364

(173 N.C. 734)

STATE

v.BURNETTE.

(No. 1.)

Supreme Court of North Carolina.

Feb. 21, 1917.

Appeal from Superior Court, Pasquotank County; Bond, Judge.

Ed Burnette was convicted of importing intoxicants, etc., and from an order refusing to discharge him in habeas corpus proceedings, he appeals. Case remanded, with directions to proceed in the original case as indicated.

The defendant was charged before the criminal court of Pasquotank county with importing into the state from another state more than one quart of intoxicating liquor, and also with having in his possession a quantity of such liquor in excess of one gallon for the purpose of sale, contrary to the statute. The case was heard by the court, and the defendant was convicted. He was sentenced to work on the public roads in the first case for one month and in the second case for three months. He appealed, and afterwards abandoned his appeal, with the understanding that he should pay a fine of $200 in the first case, which he did, and that judgment would be suspended in the other case, and he be required to appear on the 1st of April, 1916, and every three months thereafter for one year, and show that he had not violated the law regulating the importation and use of intoxicating liquors. Judgment was suspended accordingly. The following facts were found by the judge and stated in the case: The defendant, when three months were out, started to see the trial justice and to show that he had had no dealings with liquor, when he was met by the said trial justice and told that "it was all right and he could go." The defendant understood from this that he was released from further attending court. On the 1st day of August, 1916, while the defendant was at his work on the streets of Elizabeth City, he was taken into custody by one of the policemen of Elizabeth City and carried into the private law office of the trial justice, who is a practicing attorney in Elizabeth City, and after hearing certain statements of policeman was sentenced to the common jail of Pasquotank county, and in a few minutes was taken to the public roads and there worked with convicts. No testimony was produced of any selling or having for sale any liquor since the judgment was suspended. There was no hearing in court, except as above stated, and the defendant had no counsel to take any steps for his defense. The act creating the criminal court (chapter 180, Public Laws 1907) directs that the court shall be held at the courthouse or at the town hall. Said act is made part of these findings for reference. The defendant had been living in Elizabeth City from the time of his conviction to the time of his arrest, draying on the streets and passing by the policemen of Elizabeth City and the trial justice every day. He had not dealt with liquor from December 18, 1915, to August 1, 1916, so far as any evidence appeared. Nothing more than enough to create some suspicion on the part of policemen.

The judge refused to discharge the defendant, and the latter appealed, and was released from custody on a bail bond of $75 conditioned to abide the result of the appeal.

Aydlett & Simpson and C. W. Brown, all of Elizabeth City, for appellant.

The Attorney General and Assistant Attorney General Sykes, for the State.

WALKER, J. (after stating the facts as above). [1] The Legislature, by Public Laws 1907, c. 180, created and established the criminal court of the county of Pasquotank, presided over by a trial justice, and gave it jurisdiction of criminal cases therein specified; the offenses charged against the defendant being of the prescribed class. When the defendant, upon his conviction in that court of unlawfully importing spirituous liquor into this state, and of having in his possession for sale more than one gallon of such liquor, consented to waive his right of appeal, and also consented to a suspension of the judgments, upon the terms and conditions stated therein, he was bound by his consent thus given, and the proceedings up to this stage of the case were regular and valid and according to established precedents. State v. Crook, 115 N. C. at page 760, 20 S. E. 513, 29 L. R. A. 260; State v. Everitt, 164 N. C. 399, 79 S. E. 274, 47 L. R. A. (N. S.) 848; State v. Hilton, 151 N. C. 687, 65 S. E. 1011; State v. Tripp, 168 N. C. 150, 83 S. E. 630. The matter is so fully considered in those cases that we deem it useless to attempt any further discussion of it. Defendant did not question the power of the court to suspend the judgments in the criminal prosecutions upon the terms imposed, but when he was brought before the justice of the criminal court for the purpose of enforcing the suspended judgments he sued out a writ of habeas corpus and attacked the validity of the sentence upon the ground that there was in law no real investigation of the question as to whether the defendant had violated the terms of the suspension.

If those proceedings were merely irregular or erroneous, they cannot be assailed collaterally by the writ of habeas corpus, and in order to do so defendant must show that they are absolutely void and of no effect in law. Ex parte McCown, 139 N. C. 95, 51 S. E. 957, 2 D. R. A. (N. S.) 603. It was there said:

"We cannot decide whether there was any merely erroneous ruling of the court or any irregularities in respect to judgment and procedure, as the writ of habeas corpus can never be made to perforin the office of a writ of error or of an appeal. We are confined in our investigation to the question of jurisdiction or power of the judge to proceed as he did, and cannot otherwise pass upon the merits of the controversy. There must have been a want of jurisdiction over the person or the cause or some other matter rendering the proceedings void, as this is the only ground of collateral attack. The law inthis respect has been definitely settled, we believe, by all the courts."

See, also, Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405; Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. 699, 33 L. Ed. 150; Rapalje on Contempts, § 155.

The court held in Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538, that a writ of habeas corpus cannot be made to perform the functions of a writ of error, and "to warrant the discharge of the petitioner, the sentence under which he is held must be, not merely erroneous * * * but absolutely void." In this case, therefore, the range of our inquiry is narrowed to the question of jurisdiction and the legal validity of the sentence in other respects.

If the proceedings were either irregular or erroneous, the...