State v. Herndon

• Decision Date: 01 December 1890
• Citation: 12 S.E. 268,107 N.C. 934
• Parties: State. v. Herndon.
• Court: North Carolina Supreme Court

107 N.C. 934

12 S.E. 268

State.

v.Herndon.

Supreme Court of North Carolina.

Dec. 1, 1890.

Habeas Corpus—Review by Certiorari—Certifying Opinion.

1. Upon a petition of habeas corpus, the judge who hears the writ judges in his sound discretion what amount of testimony is proper to be heard, and whether the petitioner should be admitted to bail, and his action in that regard is not subject to review; but, when he declines to hear any testimony, or to investigate the case upon the return of the writ, on the ground that it appeared that a true bill for a capital offense has been found by a grand jury against the petitioner, this is a ruling of law which the petitioner is entitled to have reviewed and reversed.

2. As the statute gives no appeal in such cases, the court will exercise its constitutional power of supervision of the lower courts, by a writ of certiorari. Const, art, 4, § 8.

8. If, upon such certiorari, the court reverses and sets aside the judgment of the court below, and the proceedings are remanded, no procedendo issues to any particular judge, but the petitioner can exercise his statutory right to apply de novo to any judge authorized to grant the writ of habeas corpus.

4. The court in its judgment may direct an opinion, certified down in advance of the statutory time.

Merrimon, C. J., dissenting.

(Syllabus by the Court.)

This was an application for habeas corpus heard before MacRae, J. Upon thereturn of the writ, it appearing that the petitioner was in jail by virtue of a true bill for murder, duly returned by the grand jury of Durham county, his honor "declined the application of the prisoner to examine the witnesses in this matter, with a view to the admission of the prisoner to bail, upon the ground that the true bill found by the grand jury shows probable cause, " and remanded the prisoner to jail. This is an application for a writ of certiorari, to the end that the ruling of the judge may be certified to this court and reviewed.

W. W. Fuller, J. S. Manning, and R. B. Boone, for appellant.

The Attorney General, for the State.

Clark, J. If the judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies either in favor of the state or the petitioner. Walton v. Gatlin, 60 N. C. 310; State v. Miller, 97 N. C. 451, 1 S. E. Rep. 776. The quantum of evidence, and the number of witnesses to be examined, must necessarily be left also to the sound discretion of the judge who hears the writ, and his action in that regard cannot be reviewed. When, however, on the return of the writ, the judge declines to hear evidence because an indictment for a capital offense has been found against the petitioner, this presents a ruling of law which the petitioner is entitled to have reviewed by this court. The statute nowhere provides for an appeal in such case, but the constitution (article 1, § 18) guaranties the writ of habeas corpus, and if such ruling has the effect to deny its efficacy to any one who, on investigation of the evidence, might have been entitled to bail, this court by virtue of the constitution (article 4, § 8) has "the power to issue any remedial writ necessary to give it a general supervision and control over the proceedings of the inferior courts." It appearing that, upon the return of the writ, the judge declined to hear evidence or investigate the charge, the writ of certiorari should issue that we may be further advised concerning the matter. Walton v. Gatlin, supra; Ex parte Biggs, 64 N. C. 202; State v. Jefferson, 66 N. C. 309. A certified transcript of the record being in court, by consent, it is docketed and taken as a return to the certiorari. From such transcript, it appears that, on the return of the writ, the judge declined to hear any testimony, upon the ground that the true bill was probable cause. The question then is whether the finding of a true bill either deprived the judge of the power to investigate the evidence, and admit prisoner to bail, or was so conclusive of the fact that there was probable cause as to deprive a citizen of the right to have the cause of his detention, and his right to be admitted to bail, inquired into by virtue of this great writ of right. We think not. The grand jury, it must be remembered, hear the state's witnesses only, and only such of them as may be sent before them by the solicitor, or by order of the court. Code, § 1742. It may happen, and often does, that, upon hearing the state's evidence only, the conviction produced is ample to justify the grand jury in finding a true bill for murder; yet, upon an examination of the witnesses for both sides, by a judge upon the writ of habeas corpus, it may appear that there was no probable cause as to the charge of murder, and that it is a case of manslaughter, and therefore bailable, or excusable homicide, or it may be that there is no probable cause upon the whole evidence that the defendant was the guilty party. The defendant should not bo deprived of this right guarantied to him by the constitution, and be compelled to lie in jail, probably for months, when an intelligent judge, upon hearing the whole evidence, the benefit of which is denied to a grand jury, might properly adjudge that there was no probable cause, as to the capital offense, at least, and admit the defendant to bail. We are aware that in State v. Mills, 2 Dev. 420, a most eminent judge has indicated arguendo an opinion that, after a true bill found for a capital offense, the petitioner is debarred from the right to have his claim to be admitted to bail inquired into upon a writ of habeas corpus. But that decision was made under the former constitution and statutes. Under the former statute, when it appeared upon the return of the writ that the petitioner was in jail upon process for trial upon a capital offense, the prisoner could not be bailed. Rev. St. c. 55, § 3; Rev. Code, c. 55, § 3. Now, however, the Code (section 1161) provides that any justice of the supreme court, or judge of the superior or criminal court, "shall have power to bail persons committed to bail charged with crime in all cases." This, we take it, means that any person charged, but not convicted, of any crime whatever, may be admitted to bail, if the judge, upon hearing the testimony upon a writ of habeas corpus adjudges that upon the facts developed the petitioner is entitled to be released on bail. Sections937 and 1624, subd. 2, provide that, if upon return of the writ it appear that the petitioner is in custody by virtue of a judgment, he shall not be bailed. Section 1644, provides that, upon the return of the writ, the judge "shall examine into the facts contained in the return, and into the cause of the restraint, " and " hear the allegations and proofs on both sides, and do what to justice shall appertain in delivering, bailing, or remanding the party." In treating the finding of the grand jury as conclusive of probable cause, and refusing to hear any evidence or proof, we think the judge denied the prisoner the remedy he was entitled to have by virtue of this last section. The true bill was no proof of the charge, nor did the judge hear any proof for the petitioner at all, though offered. The judge having refused to hear the evidence, and to pass upon the right of the prisoner to be admitted to bail, committed error, and it must be so adjudged. Lynch v. People, 38 Ill.494; Com. v. Rutherford, 5 Rand. (Va.) 646; Lumm v. State, 3 Ind. 293; People v. Cole, 6 Park. Crim. R. 695; 2 Hawk. P. C. c. 15, § 79; Hurd, Hub. Corp. 439; Church, Hab. Corp. p. 540 There are other cases, as where the prisoner is so sickas to be in danger of bis life, or the prosecution is unreasonably delayed, and the like, in which the prisoner has been let to bail after indictment found. Kirk's Case, 5 Mod.454; U.S. v. Jones, 3 Wash.C. C. 224; Bac. Abr. "Bail in Criminal Cases, " D; Hurd, Hab. Corp. 445. But these and like cases stand on a different footing from the present application, and are only authority that a habeas corpus may lie after indictment found for a capital offense. A statutory remedy is now given where the trial is unreasonably delayed by Code, § 1658. In a recent historical case, Jefferson Davis, after an indictment found for treason, was admitted to bail by the United States court. Where the charge is of a capital felony, which is prima facie not bailable, the courts are very slow to admit to bail, for there is good authority that "all that a man hath will he give in exchange for his life, "and, after indictment found, it is only in a clear case, and with great caution, that a judge will admit to bail; for, while the indictment is no presumption of guilt on the trial before the petit jury, it is otherwise in the application for bail. The presumption then is in favor of the correctness of the action of the grand jury, and it may be that testimony was before them, which is not produced before the judge. We merely decide that the finding of the true bill does not preclude the application. Of course, after indictment found, the judge cannot absolutely discharge the prisoner in any case, however clear a case of innocence may be made out, but must require his appearance at the next terra of court. Code, § 1626, gives the prisoner the right to apply for the writ to any of the Justices of the supreme court, or any judge of the superior court. Section 1627, subd. 4, requires an averment in the petition, that the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus. As this judgment annuls and sets aside the ruling of the judge below, there is now no former judgment which passes upon the petitioner's right. He can therefore apply de novo to anyone of the judges, as authorized by the statute, to whom he could have applied in the first instance. This is not an appeal from a judge, as judge holding the...