State v. Webb

• Citation: 155 N.C. 426,70 S.E. 1064
• Parties: STATE . v. WEBB.
• Decision Date: 19 April 1911
• Court: United States State Supreme Court of North Carolina

70 S.E. 1064

155 N.C. 426

STATE .

v.WEBB.

Supreme Court of North Carolina.

April 19, 1911.

1. Criminal Law (§ 573^*)—Speedy and Impartial Trial—Bight to.

Accused is entitled to a speedy and impartial trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1292; Dec. Dig. § 573.*]

2. Criminal Law (§ 573*)—"Speedy Trial."

The term "speedy, " as used in the guaranty of speedy criminal trials, being a word of indeterminate meaning, permits legislative definition to some extent.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 573.*

For other definitions, see Words and Phrases, vol. 7, pp. 6608, 6609; vol. 8, p. 7803.]

3. Criminal Law (§§ 1011, 1023*)—Appeal-Appealable Orders.

Appeal does not lie from an order refusing to discharge accused under Revisal 1905, § 3155, for failure to indict him; the remedy being certiorari under Const, art. 4, § 8, authorizing the Supreme Court to issue remedial writs necessary to give it control over proceedings in inferior courts.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2569, 2592; Dec. Dig. §§ 1011, 1023.*]

4. Habeas Corpus (§ 30*)—Subjects op Relief.

Habeas corpus does not lie to review an order refusing to discharge accused under Revisal 1905, § 3155, for failure to indict him.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*]

5. Habeas Corpus (§ 30*)—Nature of Remedy.

Habeas corpus is not available as a writ to review errors.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*]

6. Criminal Law (§ 1004^2-*)—Review—Remedies.

Const, art. 4, § 8, giving the Supreme Court jurisdiction to hear "upon appeal" decisions of inferior courts, etc., confers general appellate power, to be exercised under established writs and methods provided by the Legislature, and does not authorize an appeal in a narrow sense.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1004.*]

Appeal from Superior Court, Durham County; Daniels, Judge.

Eugene Webb, being charged with an offense, appeals from an order refusing to discharge him. Appeal dismissed.

Criminal action for assault with intent, etc., heard, on motion to discharge defendant from imprisonment, before his honor, F. A. Daniels, judge, at January term, 1911, of the superior court of Durham county. The statute upon which the motion was chiefly predicated (Revisal 1905, § 3155) is in terms as follows: "When any person who has been committed for treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer in open court to be brought to his trial, shall not be indicted some time in the next term of the superior or criminal court ensuing such commitment, the judge of the court, upon notice in open court on the last day of the term, shall set at liberty such prisoner upon bail, unless it appear upon oath that the witnesses for the state could not be produced at the same term; and if such prisoner, upon his prayer as aforesaid, shall not be indicted and tried at the second term of the court, he shall be discharged from his imprisonment."

On the hearing it was made to appear: "That the defendant was committed to jail of Durham county by a justice of the peace on the 24th of September, 1910; that on the last day of said December term of this court, which was December 10, 1910, the above-entitled action was continued, on motion of the state, on account of the absence of Mrs. Ella Newton, who at that time was pregnant and was about to be confined and unable to attend court, which appeared from the certificate of a reputable physician, and because she was the only witness as to the facts of the assault. The defendant, on the last day of said term, having given notice in open court, appeared and demanded that a bill of indictment be found and the defendant tried at the next succeeding term, which is the present term, which began on the 9th of January, 1911; that if a bill of indictment was not found he would pray for his discharge at the said term. That at the second term the defendant, in accordance with the said notice, moved the discharge of the defendant; no true bill having been found. The Solicitor for the state moved for a continuance on the ground that Mrs. Ella Newton has been confined, and was un able to leave her home and attend court. She was confined on the 13th day of December, as shown from the evidence herewith sent of her husband, J. W. Newton; the court finding as a fact that she was confined on the 13th day of December, 1910, and that she is not sufficiently recovered to be able to attend court at this term and to leave her home."

The court entered judgment, denying the motion, and defendant excepted and appealed.

Manning & Everett, for appellant.

T. W. Bickett, Atty. Gen., and G. L. Jones, Asst. Atty. Gen., for the State.

HOKE, J. [1] The right of a person formally accused of crime to a speedy and impartial trial has been a right guaranteed to Englishmen since Magna Charta, and to all peoples basing their system of jurisprudence on the principles of common law. The charter of Henry the Third, proclaimed in further assurance of the former, and to make it in some respects more specific on this especial subject, concludes as follows: "We will sell to no man; we will not deny or defer to any man either justice or right." Creasy on the English Constitution, pp. 134, 135, and note. The principle is embodied in the sixth amendment to the federal Constitution, and in some form is contained in this and most of our state Constitutions— all of them so far as examined.

The term "speedy, " being a word of indeterminate meaning, and permitting, therefore, to some extent, of legislative definition (Ferrall v. Ferrall, 153 N. C. 174, 69 S. E. 60), the Legislatures of this and several other states have enacted statutes on the subject the same or similar to that presented here; and, while the question has not been before our court, the construction which has generally obtained in other jurisdictions is to the effect that the law is peremptory in its requirements; and where a prisoner has brought his case within its provisions he is entitled to his discharge. People v. Morino, 85 Cal. 515, 24 Pac. 892; State v. Kuhn, 154 Ind. 450, 57 N. E. 106. The construction further being that, in statutes expressed as this one is, the effect is to require simply that the prisoner be discharged from custody, and not that he go quit of further prosecution. 12 Cyc. p. 500, note 16, citing State v. Garthwaite, 23 N. J. Law, 143, and other cases in support of the statement.

While the ruling of the court below, on authority, would seem to be erroneous, the appeal of the defendant must be dismissed, because in this state no appeal in ordinary form lies in a criminal prosecution, except from a judgment on conviction or on plea of guilt, duly entered. Revisal 1905, §§ 3274, 3275. It would lead to interminable delay, and render the enforcement of the criminal law well nigh impossible, if an appeal were allowed from every interlocutory order made by a judge or court in the course of a criminal prosecution, or from any order, except one in its nature final. Accordingly it has been uniformly held with us, as stated, that an ordinary statutory appeal will not be entertained, except from a...