State v. Miller

• Decision Date: 28 March 1887
• Citation: 1 S.E. 776,97 N.C. 451
• Parties: STATE v. MILLER.
• Court: North Carolina Supreme Court

1 S.E. 776

97 N.C. 451

STATE v. MILLER.

Supreme Court of North Carolina

March 28, 1887

Appeal from Wake county. Habeas corpus.

The petitioner alleges that his confinement is illegal, in this that at the July term, 1886, of the superior court of Wake county, he was sentenced by the court to be imprisoned in the common jail of said county for the period of 30 days, and pay a fine of $2,000, and the costs of the criminal action in which said sentence was passed, and to remain in prison until the fine and costs were paid. The petitioner has served out in said jail the full period of 30 days, and proffered to remain therein 20 days thereafter, giving due notice to the sheriff of said county that at the end of the 20 days he would surrender all his visible property, and apply to said court to be permitted to take the oath in such case made and provided, and to be allowed the benefit of the statute with reference to insolvent debtors; that on the fourteenth of September, 1886, against his protest and remonstrance, he was delivered by the sheriff to W. G. Allen, by whom he was conveyed to the said workhouse, where he has ever since been in close confinement at hard work, and that the said period of 20 days expired on the 23d inst.; that thereupon he filed in the office of the clerk of the court (no term thereof being in session) his petition praying to be allowed to surrender all his property, and to receive the benefit of the act aforesaid, upon taking the oath prescribed by law. The said petition was accompanied with a schedule truly setting forth all said property, with the incumbrances thereon, and a correct list of his creditors; and that he is informed that the clerk of the court refused to entertain the said petition, or to make any order in respect thereto notwithstanding the facts hereinbefore set forth, and the further fact that petitioner had caused to be served upon said Allen a notice of his intention to file his said petition and schedule. Wherefore he prays the court to grant him the writ of habeas corpus, to be directed to said Sheriff Nowell and to said Allen, commanding each of them forthwith to bring before the court the body of the petitioner, then and there to do and receive whatever shall be adjudged by the court in this behalf. Upon the hearing, the court ordered the petitioner to be discharged, and the state appealed.

The right of appeal in habeas corpus is purely statutory, and no appeal lies from a decision of the superior court on a writ of habeas corpus sued out to procure the release of a prisoner, on the ground that he has served the term of his sentence, is unable to pay his fine, and is prepared to take the required oath, and surrender his property, so that he may obtain his discharge under the statute.

R. H Battle, for the State.

John Gatling, for defendant.

SMITH C.J.

After the defendant's appeal to the supreme court was adversely decided, (94 N.C. 904,) and the certificate received at July term of the Wake superior court, the same judgment as before was pronounced, and the same punishment imposed, for his offense. He has undergone the full term of imprisonment, and desiring to take the benefit of the act for the relief of imprisoned debtors, and intending to remain in confinement for the further space of 20 days in order thereto, (Code § 2967,) he gave notice thereof to the sheriff, and that he would, at the expiration...