J. Frank Phillips pleaded guilty to a charge of public drunkenness, and was sentenced to pay a fine, which was changed to a suspended sentence of imprisonment. Later
he was imprisoned for violation of a condition of the suspended sentence, and he brings certiorari. Reversed.
This is a petition for a certiorari to bring into this court the record in the above-entitled case, which was tried before Hon. T. D. Bryson, judge presiding, wherein it appears that the defendant was sentenced to pay a fine of $50 and the costs for being publicly drunk upon his plea of guilty entered upon his arraignment. The above judgment or sentence was changed by the court, Judge T. D. Bryson presiding, as appears in the petition of the defendant to this court for a certiorari, which is in the main stated here, as it shows the several steps taken in the cause leading up to the application now made before us for a certiorari in lieu of an appeal, and which petition is substantially as follows:
"The defendant in the above-entitled cause hereby moves the honorable judges of the Supreme Court of North Carolina for writ of certiorari in lieu of appeal in this cause, for the reasons that at the last October term of the superior court of Yancey county the defendant pleaded guilty to the charge of public drunkenness, whereupon his honor, T. D. Bryson, judge, rendered judgment in effect that the defendant should be sent to the public roads of any county designated by the commissioners of said county for a term of six mouths if the defendant was again drunk in Yancey county, and designated the clerk of the superior court and sheriff of said county to put said execution into effect upon information that the defendant was again drunk in said county. That some time later the defendant was arrested upon a capias issued by said clerk and assigned to the public roads of Henderson county, where he is now working, and unlawfully detained in custody. The defendant sued out a writ of habeas corpus, which was heard before his honor, J. Bis Ray, Judge, on the 8th day of January, 1923, when he was recommitted upon the hearing.
"In support of this motion, the defendant cites the Public Local Laws, Acts 1913, c. 775, p. 1598, § 4, and Acts 1917, Public Local Laws, c. 603, p. 774, which restricts the penalty of public drunkenness in Yancey county to a term of 60 days, and which his honor, T. D. Bryson, exceeded by a term of four months. That the defendant was sentenced conditionally only, or rather the judgment was suspended upon the condition that the defendant pay the cost and remain sober, and that the clerk had no right, nor did his honor have any right, to designate the clerk to cause the defendant to bo arrested and committed directly to the public roads without giving him a hearing as to whether he had violated the conditions of the judgment, and which the defendant denies he had violated. As to the authority of the clerk to commit the defendant, upon ex parte information and out of court, the prisoner cites State v. Burnette, 173 N. C. 734, 91 S. E. 364, and State v. Hardin, 1S3 N. C. 815. 112 S. E. 593.
"That no appeal is provided by the laws of North Carolina from a judgment upon a writ of habeas corpus, and that the only proceedingavailable to the defendant is by application or motion for a writ of certiorari to have reviewed the record and the judgment rendered by his honor, Judge Bryson. State v. Hendron, 107 N. C. 934, 12 S. E. 208; In re Holley, 154 N. C. 163, 69 S. E. 872.
"Wherefore the defendant makes this motion for a writ of certiorari."
It seems that a second petition was filed by defendant for the writ of certiorari (perhaps one being an amendment of the other), which is substantially as follows:
"To the Honorable Justices of the Supreme Court of the State of North Carolina:
"Your petitioner, J. Prank Phillips, respectfully showeth:
"(1) That the defendant was indicted in the superior court of Yancey county charged with public drunkenness, and pleaded guilty thereto at the October term of said court, 1922.
"(2) That his honor, T. D. Bryson, rendered judgment against the defendant as follows: State v. J. Frank Phillips. In this cause the defendant pleads guilty and was fined $50 and the cost of this action. And, it appearing to the court that the defendant was intoxicated all this term of court, it is now ordered the judgment be stricken out and the following judgment rendered against the defendant: It is ordered and adjudged by the court that the defendant be confined to the county jail of Yancey county for a term of 6 months to be assigned to work upon the public roads of any county in the state that the county commissioners may assign him to, on condition that if said Phillips gets drunk again in Yancey county, it shall be the duty of the clerk of the superior court or the sheriff of this county, upon information that defendant has been drunk, to execute capias and put this judgment into effect. Defendant to be discharged upon payment of the cost.
"(3) That on the 2d day of December. 1922, the clerk of the superior court of Yancey county issued a capias for the defendant, upon which the sheriff of Yancey county has arrested the defendant, and now has him in the common jail of Yancey county pending negotiations between the commissioners of Yancey county and Henderson county to the end of assigning him to the roads of that county.
"(4) That your petitioner procured a writ of habeas corpus issued by his honor, J. Bis Ray, on the 3d day of January, 1923, which was heard before him on the 8th day of January, 1923, when his honor dismissed the habeas corpus and remanded the defendant to prison under the said judgment of his honor, T. D. Bryson.
"(5) That affiant denies that he had violated the conditions of the judgment of Judge Bryson, and contends that he has a right to be heard in open court thereon, and that the clerk of the superior court does not have jurisdiction to assign him to jail arbitrarily without such hearing; that the judgment of his honor, T. D. Bryson, is illegal, in that he had no legal authority to sentence the defendant for a longer term than 60 days under the Public Local Statutes applying to Yancey county.
"(6) Your petitioner further shows that he has lost his right to appeal from the original indictment and trial on the merits by his ac
quiescence in the suspension of the judgment, and that, unless your honors will issue a writ of certiorari for the habeas corpus proceedings to be reviewed by your court, he will suffer great wrong by being forced to serve an excessive term of imprisonment without hearing and contrary to the law and Constitution of the state. Your petitioner therefore prays your honors to grant him a writ of certiorari directed to the clerk of the superior court of Yancey county and to the other officers of said court to remove the said judgment and proceedings into the Supreme Court of North Carolina, also that a supersedeas writ be issued directed to the sheriff of Yancey county commanding him to desist from all further proceedings in the case, and directing him to release the defendant on bail, to be fixed by your honors and approved by the clerk of the superior court of Yancey county."
These petitions were properly verified.
R. W. Wilson, of Bumsville, for petitioner.
WALKER, J. (after stating the facts as above). [1] It may be well to state that there is a little confusion in the record as to the exact nature of the application to this court, one being designated as a petition and the other as a motion; but this is not very material, as it affects only the form and not the substance of the application. The board of county commissioners designated Henderson as the county in which the defendant should work under the sentence of the court, and he is now performing his work there.
This proceeding for a certiorari, instead of an appeal in the usual way and by the ordinary method, is somewhat irregular, but not enough so to warrant a dismissal. Besides the Attorney General has made no such motion, and very properly so. We will therefore consider the case and decide it on its merits. We are thus following the course indicated in the case of In re Holley, 154 N. C. 163, 69 S. E. 872, which was similar in its facts, or at least sufficiently so to make it a reliable precedent. It was there held:
"1. Except in cases concerning the care and custody of children, there is no appeal from a judgment in habeas corpus proceedings. Revisal, § 1854.
"2. In habeas corpus proceedings wherein upon the hearing are involved questions of law or legal inference, and judgment is a denial of a legal right, it may be reviewed by the Supreme Court by virtue of the Constitution (art. 4, § 8) under the power given to this court 'to issue any remedial writs necessary to give it general supervision and control over the proceedings of inferior courts.'
"3. The remedy given under the constitutional power conferred upon the Supreme Court to review a judgment in habeas corpus proceedings in matters not involving the care and custody of children (Constitution, art. 4, § 8) shall only be exercised by certiorari, and the jurisdiction cannot be acquired by appeal upon exception and error assigned.
"4. In habeas corpus proceedings, where itappears from the application for certiorari in the Supreme Court, or the documents annexed thereto, that the petition is determined under a final judgment of a competent tribunal, the writ will be denied in the Supreme Court; and when such fact is disclosed on the hearing, the petition must be remanded. Revisal, § 1822 (2), 1827, 1848 (2).
"5. The term 'final judgment or decree of a competent tribunal' wherein the Supreme Court will not issue a certiorari to review a judgment entered in habeas corpus proceedings refers only to judgments authorized by the law applicable to the case in hand; and when it appears...
