State v. Lewis, 250

Decision Date20 November 1968
Docket NumberNo. 250,250
Citation164 S.E.2d 177,274 N.C. 438
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Jessie B. LEWIS.

Atty. Gen. T. Wade Bruton and Deputy Atty. Gen., Harry W. McGalliard for the State.

Fields, Cooper & Henderson, Rocky Mount, for defendant appellant.

BOBBITT, Justice.

At his trial at October 1967 Criminal Session, defendant contended, as he had contended at a Habeas corpus hearing before Judge Cowper on February 13, 1967, that he was not Jessie B. Lewis.

At August 1955 Term, Jessie B. Lewis had pleaded Nolo contendere to the indictment. Judgment imposing a prison sentence of ten years was pronounced. He escaped. Defendant was brought or returned to prison in North Carolina in 1965. On January 12, 1967, under the name, 'Harold B. Richardson, M.D.,' defendant filed a petition for a writ of Habeas corpus. At the Habeas corpus hearing, defendant did not attack the 1955 indictment of Jessie B. Lewis nor the State's right to imprison Jessie B. Lewis. He sought immediate release from custody on the ground he was not Jessie B. Lewis. Evidence as to defendant's identity was offered by the State and by defendant. Judge Cowper resolved the disputed Question of fact by finding 'that Jessie B. Lewis and Dr. Harold B. Richardson are one and the same person.' Based on this finding of fact, Judge Cowper denied defendant's petition for immediate discharge from custody.

At the Habeas corpus hearing, it came to Judge Cowper's attention that Jessie B. Lewis had not been represented by counsel at August 1955 Term. Thereupon, Judge Cowper vacated the plea and judgment entered at August 1955 Term (and also pleas and judgments in other cases involving Jessie B. Lewis), and ordered that defendant be held for trial on the 1955 indictment of Jessie B. Lewis.

It is noted that an order entered by Judge Morris, which quotes from Judge Cowper's order of February 13, 1967, is our source of information concerning the matters set forth in the preceding paragraph. The record before us does not contain the minutes of the proceedings at August 1955 Term nor the record in the Habeas corpus proceedings.

At his trial at October 1967 Criminal Session, after the State had rested its case, defendant offered witnesses whose testimony, which was taken in the absence of the jury, tended to show they had known Jessie B. Lewis and that the person on trial was not Jessie B. Lewis. The court excluded this proffered testimony on the ground the finding previously made by Judge Cowper that defendant was Jessie B. Lewis, the person charged in the 1955 indictment, constituted Res judicata as to the identity of the person on trial. Defendant excepted to and assigned as error the court's said ruling.

The writ returnable before Judge Cowper was a writ of Habeas corpus ad subjiciendum. 25 Am.Jur., Habeas Corpus § 4. Aptly described as 'the great and efficacious writ in all manner of illegal confinement,' 3 Blackstone Commentaries 131, it is guaranteed by Article I, Section 18, of the Constitution of North Carolina. State v. Herndon, 107 N.C. 934, 12 S.E. 268. The office of this 'most celebrated writ in the English law,' 3 Blackstone Commentaries 129, 'is to give a person restrained of his liberty an immediate hearing so that the legality of his detention may be inquired into and determined.' 39 C.J.S. Habeas Corpus § 4. '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 Renfrow, 247 N.C. 55, 59, 100 S.E.2d 315, 317, and cases cited. Accord: In re Burton, 257 N.C. 534, 540, 126 S.E.2d 581, 586. 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, 134, and cases cited; In re Renfrow, supra. The remedy, if any, is by petition for writ of Certiorari, addressed to the sound discretion of the appellate court. In re Lee Croom, 175 N.C. 455, 95 S.E. 903.

The finding of fact made by Judge Cowper in the Habeas corpus proceedings had legal significance only as a basis for his decision that defendant was not then entitled to immediate release from custody. It has no significance in determining whether defendant is guilty of the crime charged in the 1955 indictment. Assuming valid process and sufficient accusation, the prisoner is not entitled to discharge if Probable cause is shown for his confinement pending trial. State v. Herndon, supra.

Whether defendant, if the plea of Jessie B. Lewis and the judgment pronounced thereon had not been vacated, would have been entitled, in the Habeas corpus proceedings or otherwise, to have the controverted question as to his identity decided by a jury, is not presented. Judge Cowper vacated the plea and judgment.

At October 1967 Session, defendant was tried on the 1955 indictment. His plea of not guilty put in issue Every essential element of the crime charged. State v. Cooper, 256 N.C. 372, 381, 124 S.E.2d 91, 97. The burden was on the State to prove beyond a reasonable doubt that defendant, the person on trial, was in fact Jessie B. Lewis, the person indicted, and all other essential elements of the crime charged. State v. Logner, 269 N.C. 550, 553, 153 S.E.2d 63, 66; State v. Clyburn, 273 N.C. 284, 292, 159 S.E.2d 868, 873.

Article I, Section 13, of the Constitution of North Carolina provides: 'No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful persons in open court. The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal.' A statute (Chapter 23, Public Laws of 1933, later codified as § 4636(a) of the N.C.Code of 1935) which permitted a defendant, by pleading Nolo contendere to a felony charge, to waive a jury trial and be tried by the judge, was held unconstitutional as violative of Article I, Section 13. State v. Camby, 209 N.C. 50, 182 S.E. 715. In the cited case, Stacy, C.J., quotes with approval from the opinion of Hoke, J. (later C.J.), in State v. Wells, 142 N.C. 590, 55 S.E. 210, as follows: 'Two decisions of this court--State v. Stewart, 89 N.C. 563, 564; State v. Holt, 90 N.C. 749--have held that in the Superior Court, on indictment originating therein, trials by jury in a criminal action could not be waived by the accused.' Defendant was entitled as of right to a jury trial as to Every essential element of the crime charged, including the question as to his identity.

The ruling of the trial judge excluding the testimony proffered by defendant was approved by the Court of Appeals. In our view, the texts and decisions cited do not warrant this conclusion. The cited decisions are discussed below.

Analysis of State ex rel. Cacciatore v. Drumbright, 116 Fla. 496, 156 So. 721, 97 A.L.R. 154, discloses the following: One Joe Cacciatore 'was tried in the municipal court of Tampa, upon a docket charge which ineffectually attempted to allege a violation of City Ordinance No. 455--A.' The judge overruled his motion to quash, found the defendant guilty and pronounced judgment. However, the Circuit Court, in a Habeas corpus proceeding, ordered the defendant discharged from custody on the ground the accusation on which the defendant was tried, convicted and sentenced 'did not state an offense against either the City of Tampa or the State of Florida.' 'Subsequently, another docket charge was entered in the municipal court which * * * sufficiently charge(d) the defendant with certain acts which (did) constitute a violation of said Ordinance 455--A.' The action under consideration was instituted by Cacciatore in the Circuit Court to obtain a writ of prohibition. Alleging former jeopardy, he prayed that the judge of the Tampa Municipal Court be prohibited from proceeding with the second prosecution. The Circuit Court dismissed the action. When affirming the judgment, the Supreme Court of Florida, in opinion by Brown, J., said: '(I)n Habeas corpus proceedings, the general rule in most jurisdictions is that an order or judgment Discharging a person in such proceedings is conclusive in his favor that he is illegally held in custody and is Res judicata of all issues of law and fact necessarily involved in that result, and he cannot be again arrested for the same cause; that is, Upon the same warrant, indictment, or information which was therein held illegal.' (Our italics.) The statement from 25 Am.Jur., Habeas Corpus § 157, quoted in the opinion of the Court of Appeals, is in essentially the same words used by Brown, J., in the Florida case. The opinion of Brown, J., continues: 'While it usually terminates the pending proceeding against the petitioner, it does not necessarily prevent the institution of a subsequent prosecution against him under proceedings which are legal and sufficient and which remove the illegalities, or supply the defects, on account of which the order of discharge was granted.'

Petition of Moebus, 74 N.H. 213, 66 A. 641 (1907), referred to by the Court of Appeals, and the prior decision, Petition of Moebus, 73 N.H. 350, 62 A. 170 (1905), relate to the following factual situation: In 1865 one Mark Shinborn was tried and convicted of a felony in New Hampshire and sentenced to imprisonment for ten years. Committed to prison on February 27, 1866, he escaped December 3, 1866, and fled from the State. In 1900, the prisoner, a resident of New York, was arrested in that State. He was brought into New Hampshire upon a requisition issued by its Governor. Although he asserted he was Henry E. Moebus, not Mark Shinborn, he refused to litigate separately an issue as to his identity. He asserted his imprisonment in New Hampshire was unlawful on the ground 'he was lawfully entitled to a hearing before a competent court within (New Hampshire) prior to his commitment to prison,' and that, upon denial of such hearing (...

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