CASE NOTES

Purpose of this section and G.S. 17-2 is to insure that a remedy is provided to inquire into the lawfulness of an inmate's restraint. Hoffman v. Edwards, 48 N.C. App. 559, 269 S.E.2d 311 (1980).

Habeas corpus is high prerogative writ. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Waiver. - A defendant may waive the benefit of this article by express consent, failure to assert it in apt time or by conduct inconsistent with a purpose to insist upon it. State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976).

Applied in Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010).

Cited in State v. Chapman, 218 N.C. App. 428, 724 S.E.2d 540 (2012).

CASE NOTES

Purpose of G.S. 17-1 and this section is to insure that a remedy is provided to inquire into the lawfulness of an inmate's restraint. Hoffman v. Edwards, 48 N.C. App. 559, 269 S.E.2d 311 (1980).

Section Cannot Be Abrogated. - This section is an express provision, and there is no rule of construction or principle of constitutional law by which an express provision can be abrogated and made of no force by an implication from any other provision of the instrument. The clauses should be construed so as to give effect to each, and prevent conflict. This is done by giving to N.C. Const., Art. XII, § 1, the effect of allowing military possession of a county to be taken, and the arrest of all suspected persons to be made by military authority, but requiring, by force of N.C. Const., Art. I, § 21, the persons arrested to be surrendered for trial to the civil authorities, on habeas corpus, should they not be delivered over without the writ. Ex parte Moore, 64 N.C. 802 (1870).

CASE NOTES

Court Is Not Permitted to Act as One of Errors and Appeals. - In habeas corpus proceedings, the court is not permitted to act as one of errors and appeals, but the right to afford relief, on such hearings, arises only when the petitioner is held unlawfully or on a sentence manifestly entered by the court without power to impose it. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Habeas corpus is not available as a substitute for appeal. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Judgment must be void as distinguished from erroneous. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); Brown v. North Carolina, 341 F.2d 87 (4th Cir. 1965).

As Where Court Had No Jurisdiction or Judgment Was Not Authorized by Law. - In habeas corpus proceedings, the court has jurisdiction to discharge petitioner only when the record discloses that the court which imprisoned him did not have jurisdiction of the offense or of the person of defendant, or that the judgment was not authorized by law. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Habeas corpus relief may be obtained only on determination that the court which imprisoned the petitioner did not have jurisdiction of the offense or of the prisoner, or that judgment was not authorized by law. Brown v. North Carolina, 341 F.2d 87 (4th Cir. 1965).

The only questions open to inquiry are whether on the record the court which imposed the sentence had jurisdiction of the matter or had exceeded its powers. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Ordering two habeas petitioners' release was error where they were held due to an immigration-related process by a sheriff who was a party to a 287(g) agreement with the federal government. Thus, the court's state law authority to inquire into the lawfulness of petitioners' detentions had been superseded by federal law. Although the trial court had authority to make an initial determination as to its authority, an examination of the applications themselves should have led it to summarily deny the habeas corpus petitions. Chavez v. McFadden, 374 N.C. 458, 843 S.E.2d 139 (2020).

While a trial judge presented with an application for the issuance of a writ of habeas corpus has the authority to determine whether it is entitled to act upon any such petition, it should (1) summarily deny an application seeking the issuance of a writ of habeas corpus that alleges that the petitioner is being held pursuant to an immigration-related arrest warrant or detainer by a sheriff who is a party to a 287(g) agreement with the federal government and (2) deny a petitioner's request for discharge in the event that the return filed by a sheriff who has entered into a 287(g) agreement with the federal government claims that the petitioner is being held pursuant to an immigration-related arrest warrant or detainer. Chavez v. McFadden, 374 N.C. 458, 843 S.E.2d 139 (2020).

The sole question for determination at habeas corpus hearing for alleged unlawful imprisonment is whether petitioner is then being unlawfully restrained of his liberty. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Where one is actually confined for a longer term of imprisonment than is legal, a writ of habeas corpus will issue to the end that a proper sentence may be imposed. State v. Green, 85 N.C. 600 (1881).

Prisoner Under Illegal Sentence. - Where a defendant, charged with the crime of burglary with intent to commit murder, consented to a mistrial and pleaded "guilty of larceny," and was sentenced to imprisonment in the penitentiary, a writ of habeas corpus will issue, in order that he may be taken from the penitentiary and held to answer the charge in the court below. State v. Queen, 91 N.C. 659 (1884).

One Imprisoned for Contempt. - Where a defendant punished for direct contempt contends that a legal right has been denied him, and it is made to appear that the court was without jurisdiction of the cause or power to impose the sentence, his remedy is by habeas corpus proceedings, taken to the Supreme Court, if necessary, by writ of certiorari. State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

Proceedings to obtain control of a minor child between persons with whom the child had been placed for adoption and welfare officers seeking to place the child with his family are not proceedings under this section, to set the infant free but are proceedings to fix and determine the right of custody. In re Thompson, 228 N.C. 74, 44 S.E.2d 475 (1947).

Relief of Soldier in Army. - A soldier actually and rightfully in the army can have no relief by the writ of habeas corpus against any abuse of military authority, and if he is wrongfully held as a soldier, he is not entitled to a habeas corpus while he is undergoing punishment or awaiting trial for a military offense. Cox v. Gee, 60 N.C. 516 (1864).

Sufficiency of the Evidence. - Although an applicant for a writ of habeas corpus alleged that a parole agreement required the applicant's release, the applicant failed to present adequate factual support for this contention. Thus, the trial court did not err by summarily denying the applicant's request, given that the applicant failed to establish that the applicant had a colorable claim to be entitled to discharge from custody based on an alleged deprivation of a constitutionally protected liberty interest without due process of law. State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Order Issued by Habeas Court Exceeded Its Authority. - Trial court's ruling on a habeas petition that the twins defendant was charged with killing did not meet the born-alive rule, leaving the trial court without jurisdiction to order defendant held without bail, improperly usurped the jury's duty to weigh the evidence on that issue. As the court exceeded its authority, the order issued was void. State v. Chapman, 228 N.C. App. 449, 747 S.E.2d 114 (2013).

Cited in State v. Hamrick, 2 N.C. App. 227, 162 S.E.2d 567 (1968).

CASE NOTES

Construction. - To give meaning to every word of G.S. 17-33 and harmonize the apparent conflict between G.S. 17-33(2) and this section in light of the legislative intent expressed in G.S. 17-33(2), the court holds that G.S. 17-33(2) provides an exception to the general rule provided by this section. State v. Daw, - N.C. App. - , - S.E.2d - (May 4, 2021).

Cannot Be Used as Writ of Error. - The writ of habeas corpus cannot be used in the nature of a writ of error. State v. Dunn, 159 N.C. 470, 74 S.E. 1014 (1912).

Habeas corpus is in the nature of a writ of error to the extent of examining into the legality of a person's detention, but it is not available as a means of reviewing and correcting mere errors as distinguished from defects of jurisdiction. State v. Edwards, 192 N.C. 321, 135 S.E. 37 (1926); In re Chase, 193 N.C. 450, 137 S.E. 305 (1927), cert. denied, 278 U.S. 600, 49 S. Ct. 9, 73 L. Ed. 529 (1928).

Nor Substitute for Appeal. - The writ of habeas corpus may not be used as a substitute for appeal. In re Smith, 218 N.C. 462, 11 S.E.2d 317 (1940).

Administrative Discretion. - The difficult problems of when a person should be released and under what circumstances turn on analysis of internal correctional policy, and rightfully lie within the sole administrative jurisdiction of State governmental departments, and are not, barring a clear instance of constitutional infirmity, subjects appropriate for judicial scrutiny. In re Imprisonment of Stevens, 28 N.C. App. 471, 221 S.E.2d 839 (1976).

In practical terms, the questions of grade of conduct, privileges, disciplinary action and commendations are strictly administrative and not judicial matters. In re Imprisonment of Stevens, 28 N.C. App. 471, 221 S.E.2d 839 (1976).

Habeas corpus is inappropriate to test the validity of a trial which resulted in conviction and final judgment against petitioner, both by reason of established procedure and also by this section. In re Taylor, 229 N.C. 297, 49 S.E.2d 749 (1948).

Where one is imprisoned under the final process of a court of competent jurisdiction the writ of habeas corpus may not successfully be sued out since this section expressly forbids it. Ledford v. Emerson, 143 N.C. 527, 55 S.E. 969 (1906); In re Holley, 154 N.C. 163, 69 S.E. 872 (1910); Howie v. Spittle, 156 N.C. 180, 72 S.E. 207 (1911).

In a proceeding wherein there was no question of the superior court having jurisdiction of the offense and of the person of the defendant, and the power to render the judgment imposed, the defendant was not entitled to relief by habeas corpus on the ground that the record failed to show that a verdict was rendered in the case or that he had entered any plea, since any omissions in the minutes of the court with respect to procedure followed during the course of trial could be amended by the court. State v. Cannon, 244 N.C. 399, 94 S.E.2d 339 (1956).

In construing the term, "final judgment or decree of a competent tribunal," it has come to be well understood that the exception refers only to judgments warranted by the law applicable to the case in hand, and where it appears from an inspection of the record proper and the judgment itself that the court had no jurisdiction of the cause and was manifestly without power to enter the judgment or impose the sentence in question, in such case there would be no final sentence of a competent tribunal, and the exception established by the statute does not obtain. State v. Queen, 91 N.C. 659 (1884); In re Holley, 154 N.C. 163, 69 S.E. 872 (1910).

Meaning of "Competent Jurisdiction". - The term, "competent jurisdiction," used by this section in making an exception to the power of this court to review a judgment in habeas corpus proceedings, means that where a committed criminal is detained under a sentence not authorized by law, he is entitled to be heard, and where, though authorized in kind, it extends beyond what the law expressly permits, he may be relieved from further punishment after serving the lawful portion of the sentence; and a different construction would render the statute unconstitutional. In re Holley, 154 N.C. 163, 69 S.E. 872 (1910).

Presumption of Validity. - Proceedings before a court of competent jurisdiction will be presumed to be regular and valid, unless upon their face they plainly appear to be void; and when they do not so appear, they are not subject to review in habeas corpus proceedings. State v. Burnette, 173 N.C. 734, 91 S.E. 364 (1917).

Reason for Rule. - Without reference to the positive prohibition of this section, it is otherwise clear that the power cannot extend to cases where the person is confined on final process. For if so, this unseemly and discordant result would follow, that one superior court judge might try and sentence a person to death or the penitentiary, and another might issue the writ of habeas corpus and discharge the prisoner. Results so disgraceful and destructive to the orderly and harmonious administration of justice were never contemplated by the framers of our judicial system; on the contrary, they were carefully guarded against, both by the Constitution and legislation. In re Schenck, 74 N.C. 607 (1876).

Where Sentence Erroneous. - The application must be refused, even where it appears that the applicant is imprisoned in the State's prison, and the sentence of the court is erroneous, and the applicant, in default of appeal, must be left to his remedy by writ of certiorari when he is detained by virtue of a final judgment of a court of competent jurisdiction. In re Schenck, 74 N.C. 607 (1876).

Indictment returned by a grand jury is sufficient ground to detain a defendant for trial, and the defendant is not entitled to his release in a habeas corpus proceeding. State v. Murphy, 10 N.C. App. 11, 177 S.E.2d 917 (1970), appeal dismissed, 277 N.C. 727, 178 S.E.2d 830, cert. denied, 278 N.C. 105, 179 S.E.2d 453 (1971).

Prior Writ of Habeas Corpus. - See In re Adams, 218 N.C. 379, 11 S.E.2d 163 (1940).

Conviction Based on Illegal Evidence Authorized by Unconstitutional Statute. - An indictment and judgment against the prisoner for an illegal sale of spirituous liquors alleged to have been based upon illegal evidence authorized by an unconstitutional statute, may not be passed upon in habeas corpus proceedings, for such would be to permit one superior court judge to examine into the proceedings before another judge, upon parol evidence, and review his action. State v. Dunn, 159 N.C. 470, 74 S.E. 1014 (1912).

Sufficiency of the Evidence. - Although an applicant for a writ of habeas corpus alleged that a parole agreement required the applicant's release, the applicant failed to present adequate factual support for this contention. Thus, the trial court did not err by summarily denying the applicant's request, given that the applicant failed to establish that the applicant had a colorable claim to be entitled to discharge from custody based on an alleged deprivation of a constitutionally protected liberty interest without due process of law. State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Applied in In re Croom, 175 N.C. 455, 95 S.E. 903 (1918); State v. Hooker, 183 N.C. 763, 111 S.E. 351 (1922); In re Renfrow, 247 N.C. 55, 100 S.E.2d 315 (1957).

Cited in In re Harris, 241 N.C. 179, 84 S.E.2d 808 (1954); Dantzic v. State, 279 N.C. 212, 182 S.E.2d 563 (1971).

CASE NOTES

Application May Be Withdrawn. - One who has petitioned for a writ of habeas corpus may withdraw his application whenever he chooses. State v. Wiley, 64 N.C. 821 (1870).

Cited in In re Thomas, 290 N.C. 410, 226 S.E.2d 371 (1976).

CASE NOTES

Remedy May Be Demanded Before Judge of Any Court of Competent Jurisdiction. - The Constitution required the legislature to furnish an adequate remedy, and when it was declared that all such persons should have the right to "prosecute a writ of habeas corpus," it followed ex vi termini, that they were entitled to demand this remedy before any judge of any court of general jurisdiction in this country. The power of all judges to grant it was conceded before the Magna Charta, and was only reaffirmed, like many other cardinal principles, in that instrument and those that followed reaffirming it. Harkins v. Cathey, 119 N.C. 649, 26 S.E. 136 (1896).

Jurisdiction of Courts. - The courts of this State, as well as the individual judges, have jurisdiction to issue writs of habeas corpus, returnable to them in term time, and as a court. In re Bryan, 60 N.C. 1 (1863).

Source of Authority of State Judges. - It is to be observed that the authority of the state judges in cases of habeas corpus emanates from the several states, and not from the United States. In order to destroy their jurisdiction, therefore, it is necessary to show, not that the United States has given them jurisdiction, but that Congress possesses and has exercised the power of taking away that jurisdiction which the states have vested in their own judges. In re Bryan, 60 N.C. 1 (1863).

Jurisdiction Arises on Presentation of Petition. - Presenting a petition to a judge for a writ of habeas corpus gives him jurisdiction of the subject. State v. Edney, 60 N.C. 463 (1864).

Judges Mentioned Have Equal Powers. - A single judge of the Supreme Court has the same and no other jurisdiction to issue the writ than a judge of the superior court, and the same limitation of power to issue the writ in certain cases extends equally to the two classes of judges. In re Schenck, 74 N.C. 607 (1876).

Before Whom Writ Made Returnable. - The judge issuing the writ may make it returnable before himself, or, for convenience, before any other judge. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

The particular judge before whom the writ is returnable need not be either the resident or presiding judge of any particular term of court. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

G.S. 1-76 et seq., concerning venue, refers to "actions" and has no application to habeas corpus proceedings. McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684 (1936).

Review of Discretionary Power of Judge as to Place Writ Is Returnable. - Since any judge of the superior court or justice of the Supreme Court has the power to issue a writ of habeas corpus at any time or any place, he has the discretionary power to make the writ returnable at such place as he may determine, which discretion will not be reviewed in the absence of a showing of abuse or failure to afford full opportunity to be heard, and therefore an exception to the refusal of a motion for change of venue of habeas corpus proceedings cannot be sustained. McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684 (1936).

Applied in In re Cox, 24 N.C. App. 99, 210 S.E.2d 223 (1974).

CASE NOTES

Allegation of Prior Writ. - A petition for habeas corpus must allege that the imprisonment has not been already adjudged upon a prior writ of habeas corpus. In re Brittain, 93 N.C. 587 (1885).

Sufficiency of the Allegation. - Although an applicant for a writ of habeas corpus alleged that a parole agreement required the applicant's release, the applicant failed to present adequate factual support for this contention. Thus, the trial court did not err by summarily denying the applicant's request, given that the applicant failed to establish that the applicant had a colorable claim to be entitled to discharge from custody based on an alleged deprivation of a constitutionally protected liberty interest without due process of law. State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Prior Writ of Habeas Corpus. - See In re Adams, 218 N.C. 379, 11 S.E.2d 163 (1940).

Failure to Allege Prior Writ. - Where a defendant had not been tried when his writ of habeas corpus was filed, and he did not assert in the petition that the legality of his restraint had not been already adjudged upon a prior writ of habeas corpus, he did not comply with the provisions of this section, relating to the contents of a petition for the writ of habeas corpus. State v. Murphy, 10 N.C. App. 11, 177 S.E.2d 917 (1970), appeal dismissed, 277 N.C. 727, 178 S.E.2d 830, cert. denied, 278 N.C. 105, 179 S.E.2d 453 (1971).

Parties may waive all errors and dispense with all forms in the proceedings on the petition. State v. Edney, 60 N.C. 463 (1864).

Applied in Hoffman v. Edwards, 48 N.C. App. 559, 269 S.E.2d 311 (1980).

Cited in State v. Green, 2 N.C. App. 391, 163 S.E.2d 14 (1968).

CASE NOTES

When Illegal Imprisonment Appears on Appeal or Certiorari. - If a case comes before the Supreme Court by appeal, or by certiorari, and upon the trial it appears that the prisoner was suffering an illegal confinement in the penitentiary, it would be the duty of that court, by virtue of its supervisory power, and of this section, enacted to carry into effect this constitutional power of the Supreme Court, to issue the writ of habeas corpus, even of its own motion, and discharge the prisoner. In re Schenck, 74 N.C. 607 (1876).

CASE NOTES

Duty of Court to Issue. - There can be no doubt of the duty and power of the court to issue the writ of habeas corpus when applied for in accordance with statutory provisions. In re Boyett, 136 N.C. 415, 48 S.E. 789 (1904).

Sufficiency of the Evidence. - Although an applicant for a writ of habeas corpus alleged that a parole agreement required the applicant's release, the applicant failed to present adequate factual support for this contention. Thus, the trial court did not err by summarily denying the applicant's request, given that the applicant failed to establish that the applicant had a colorable claim to be entitled to discharge from custody based on an alleged deprivation of a constitutionally protected liberty interest without due process of law. State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

CASE NOTES

The writ of habeas corpus always issues when legally applied for, because this section subjects a judge who refuses to entertain the petition to a penalty of $2,500. In re Croom, 175 N.C. 455, 95 S.E. 903 (1918).

Cited in McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684 (1936).

CASE NOTES

Applied in State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

CASE NOTES

Applied in State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

CASE NOTES

Section Intended to Compel Return and Not to Punish. - The attachment warranted by this section does not rest on the idea of punishing for a contempt of the judge, or court, but of compelling a return to the writ and a production of a body. It is a substitute for the provision in the old Habeas Corpus Act, which punished the officer or person refusing or neglecting to make due return, "upon conviction by indictment," with a fine of $500 for the first offense, and of $1,000, and incapacity to hold office, for the second. Ex parte Moore, 64 N.C. appx. 802 (1870). See also Ex parte Kerr, 64 N.C. appx. 816 (1870).

No Power to Arrest Governor. - Under the Habeas Corpus Act, a judge has no power to order the arrest of the Governor of the State. Ex parte Moore, 64 N.C. appx. 802 (1870).

Excuse for Refusal to Make Return. - Where a military officer detaining persons arrested in counties declared by the Governor to be in a state of insurrection, answered to a writ of habeas corpus, that he held them under the orders of the Governor, who had also ordered him not to obey the writ, it was held that such return was a sufficient excuse, under this section, and, therefore, that such officer was not liable to be attached. Ex parte Moore, 64 N.C. appx. 802 (1870).

Cited in Ocean Hill Joint Venture v. North Carolina Dep't of Environment, Health & Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993); Street v. Smart Corp., 157 N.C. App. 303, 578 S.E.2d 695 (2003).

CASE NOTES

Posse comitatus discussed. - See Worth v. Commissioners of Craven County, 118 N.C. 112, 24 S.E. 778 (1896).

Power of the county, or "posse comitatus," means the men of the county in which the writ is to be executed. Ex parte Moore, 64 N.C. appx. 802 (1870).

CASE NOTES

When Rearrest Valid. - A party, set at large by writ of habeas corpus, upon the ground that the judgment of imprisonment was void for want of jurisdiction in the court, may be again arrested for the same cause upon legal process of a court having jurisdiction. State ex rel. Barbee v. Weatherspoon, 88 N.C. 19 (1883).

CASE NOTES

Hearing May Be Continued. - If it appears from the return on a writ of habeas corpus that the petitioner is detained on a criminal charge, the court may continue the hearing for a reasonable time to give the solicitor (now district attorney) an opportunity to examine into the case. State v. Jones, 113 N.C. 669, 18 S.E. 249 (1893).

CASE NOTES

Proceedings Must Be Summary. - Proceedings under the writ of habeas corpus, which have for their principal object a release of a party from illegal restraint, must necessarily be summary and prompt to be useful, and if an action could be arrested by an appeal, they would lose many of their most beneficial results. State v. Miller, 97 N.C. 451, 1 S.E. 776 (1887).

Hearing Not Perfunctory. - The words of the section preclude the idea that such hearing shall be perfunctory and merely formal. In re Bailey, 203 N.C. 362, 166 S.E. 165 (1932), rev'd on other grounds, 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292 (1933).

Discretion of Judge. - 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. State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890); In re Bailey, 203 N.C. 362, 166 S.E. 165 (1932), rev'd on other grounds, 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292 (1933).

Questions Open to Inquiry. - Where the petitioner in habeas corpus proceedings is held under a final sentence of a court, a commitment of contempt or other, the only questions open to inquiry at the hearing are whether on the record the court had jurisdiction of the matter and whether on the facts disclosed in the record and under the law applicable to the case in hand, the court has exceeded its powers in imposing the sentence whereof the petitioner complains. State v. Hooker, 183 N.C. 763, 111 S.E. 351 (1922).

Evidence Not Reviewable. - The Supreme Court cannot review the evidence or other matters in a criminal case in habeas corpus proceedings, but only the jurisdiction of the court and the validity of the judgment which is attacked. State v. Burnette, 173 N.C. 734, 91 S.E. 364 (1917).

When Question of Insanity Presented. - When the petitioner in habeas corpus has been adjudged insane and her detention is ordered by a court of lunacy of another state, the judge of the superior court in this State by whom the proceedings of habeas corpus are heard should determine the validity of the order of the adjudication of insanity when the same is properly presented to him, and this is the determinative question involved, and upon failure to have done so the case will be remanded. In re Chase, 193 N.C. 450, 137 S.E. 305 (1927), cert. denied, 278 U.S. 600, 49 S. Ct. 9, 73 L. Ed. 529 (1928).

Release of Person Committed to State Mental Institution. - A person committed to a State mental institution under Chapter 122 (see now Chapter 122C) was not entitled to invoke the provisions of former G.S. 35-4 for a determination of the restoration of sanity by a jury trial as a condition precedent to his release, the proper remedy being habeas corpus under this section. In re Harris, 241 N.C. 179, 84 S.E.2d 808 (1954).

Hearing Confined to Record. - The hearing is confined to the record and judgment, and relief may be afforded only when on the record itself the judgment is one clearly and manifestly beyond the power of the court, a statement of the doctrine supported in numerous and authoritative decisions here and elsewhere. In re Schenck, 74 N.C. 607 (1876); Ex parte McCown, 139 N.C. 95, 51 S.E. 957 (1905); In re Croom, 175 N.C. 455, 95 S.E. 903 (1918).

Presumption of Innocence and Burden of Proof. - The presumption of innocence applies only on a trial, and does not avail to furnish a presumption that the detention of a party on regular process, when the committing officer has jurisdiction, is illegal; therefore, where, upon the return of a sheriff to a writ of habeas corpus, it appeared that the petitioners were in custody on a mittimus, regular in every way, from a justice of the peace, for failure to give bond for their appearances at the next term of the superior court to answer a criminal charge of which the court had jurisdiction, the detention, nothing else appearing, was clearly legal, and the burden was upon the petitioner to show wherein it was illegal, and not upon the State to show that they were lawfully in custody. State v. Jones, 113 N.C. 669, 18 S.E. 249 (1893).

Petitioner Serving Sentence under Void Judgment Is Entitled to Immediate Release. - Where upon habeas corpus it appears that petitioner is serving a sentence under a void judgment, petitioner is entitled to his immediate release. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Review of Denial of Writ. - 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 N.C. Const., Art. IV, § 12, under the power given to the court to "issue any remedial writs necessary to give it general supervision and control over the proceedings of inferior courts." In re Holley, 154 N.C. 163, 69 S.E. 872 (1910).

Appeal to the Supreme Court will not lie from the refusal of a superior court judge to discharge the defendant from custody in proceedings in habeas corpus, the remedy being by a petition for a writ of certiorari which is addressed to the sound discretion of the Supreme Court. State v. Burnette, 173 N.C. 734, 91 S.E. 364 (1917); In re Croom, 175 N.C. 455, 95 S.E. 903 (1918).

Writ of Certiorari Proper Remedy. - Where it appears that, upon the return of the writ, the judge declined to hear evidence or investigate the charge, the writ of certiorari should issue. Walton v. Gatlin, 60 N.C. 310 (1864); Ex parte Biggs, 64 N.C. 202 (1870); State v. Jefferson, 66 N.C. 309 (1872); State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890).

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, N.C. Const., Art. IV, § 12, shall only be exercised by certiorari. In re Holley, 154 N.C. 163, 69 S.E. 872 (1910).

When Writ of Certiorari Denied. - A petition for certiorari in the Supreme Court will be denied in habeas corpus proceedings when it appears therefrom that the prisoner is not entitled to his discharge. In re Croom, 175 N.C. 455, 95 S.E. 903 (1918).

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 (1864); State v. Miller, 97 N.C. 451, 1 S.E. 776 (1887); State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890).

In habeas corpus proceedings, where it appears 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. In re Holley, 154 N.C. 163, 69 S.E. 872 (1910).

Proceeding Where Judgment Reversed. - If, upon 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. State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890).

Judicial Review of Questions of Law. - In deciding questions which arise under writs of habeas corpus the judiciary may review and control the action of the Governor in regard to points of law; but cannot interfere with such action in regard to any matter within the discretion of the Governor. In re Hughes, 61 N.C. 57 (1867).

Applied in State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Cited in State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977).

CASE NOTES

Construction. - To give meaning to every word of G.S. 17-33 and harmonize the apparent conflict between G.S. 17-33(2) and this section in light of the legislative intent expressed in G.S. 17-33(2), the court holds that G.S. 17-33(2) provides an exception to the general rule provided by this section. State v. Daw, - N.C. App. - , - S.E.2d - (May 4, 2021).

Sentence Partly Void. - Where a prisoner is detained by virtue of a sentence in part valid and part otherwise, he may not be liberated on habeas corpus until he shall have served the valid portion of his sentence, and he shall be remanded when it appears that the time during which he may legally be detained has not expired. State v. Hooker, 183 N.C. 763, 11 S.E. 351 (1922).

Internal Correctional Policy Is Administrative Matter. - The difficult problems of when a person should be released and under what circumstances turn on analysis of internal correctional policy, and rightfully lie within the sole administrative jurisdiction of State governmental departments, and are not, barring a clear instance of constitutional infirmity, subjects appropriate for judicial scrutiny. In re Stevens, 28 N.C. App. 471, 221 S.E.2d 839 (1976).

In practical terms, the questions of grade of conduct, privileges, disciplinary action and commendations are strictly administrative and not judicial matters. In re Stevens, 28 N.C. App. 471, 221 S.E.2d 839 (1976).

Adverse Administrative Decision as to Correctional Status. - Where defendant, a youthful offender, was unsatisfied with an essentially administrative determination whereby his correctional status was affected adversely, diminishing his prospect for an early release, standing by itself, raises no habeas corpus question. In re Stevens, 28 N.C. App. 471, 221 S.E.2d 839 (1976).

Recovery from a mental disease after commitment to an institution would seem to be an event "which has taken place afterwards," within the meaning of subdivision (2) of this section, entitling an inmate to discharge under G.S. 17-32. In re Harris, 241 N.C. 179, 84 S.E.2d 808 (1954).

Imprisonment for Contempt. - In a case of imprisonment for contempt, where the court states the facts upon which it proceeds, a reviewing tribunal may, on a habeas corpus, discharge the party if it appears plainly that the facts do not amount to a contempt. State v. Queen, 91 N.C. 659 (1884).

Petitioner's relief for rescission of his Mutual Agreement Parole Program (M.A.P.P.) contract had to come through administrative procedures before the Division of Prisons and the Parole Commission; habeas corpus was not appropriate for obtaining judicial review of the Parole Commission's decision, absent a clear violation of constitutional rights. Freeman v. Johnson, 92 N.C. App. 109, 373 S.E.2d 565 (1988).

State Cannot Appeal Order of Discharge. - The State cannot appeal from an order in habeas corpus proceedings discharging from imprisonment one convicted of crime. Proceedings in habeas corpus, the object of which is to release a person from illegal restraint, must necessarily be summary to be useful, and if action could be arrested by an appeal upon the part of the State, the great writ of liberty would be deprived of its most beneficial results. State v. Miller, 97 N.C. 451, 1 S.E. 776 (1887); In re Williams, 149 N.C. 436, 63 S.E. 108 (1908).

Applied in State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Cited in Hoffman v. Edwards, 48 N.C. App. 559, 269 S.E.2d 311 (1980); State v. Chapman, 218 N.C. App. 428, 724 S.E.2d 540 (2012); Lovette v. N.C. Dep't of Corr., 222 N.C. App. 452, 731 S.E.2d 206 (2012).

CASE NOTES

Applied in In re Croom, 175 N.C. 455, 95 S.E. 903 (1918); State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

CASE NOTES

When Person Admitted to Bail. - A prisoner may be admitted to bail in a habeas corpus proceeding if the trial judge determines that the prisoner is so entitled. State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976).

No Discharge after Indictment. - 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 term of court. State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890).

Judge May Admit Person Charged to Bail. - 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. State v. Herndon, 107 N.C. 934, 12 S.E. 268 (1890).

Court May Hold Person to Bail Although Sentence Invalid. - Although a sentence is not valid the defendant may not be unconditionally released, as the court may hold him to bail. State v. Burnette, 173 N.C. 734, 91 S.E. 364 (1917).

Cited in State v. Chapman, 218 N.C. App. 428, 724 S.E.2d 540 (2012).

CASE NOTES

Surrender by Sureties. - Where the defendant was not originally liable to arrest and had been discharged upon habeas corpus, he cannot be held upon a surrender by his sureties. Ledford v. Emerson, 143 N.C. 527, 55 S.E. 969 (1906).

When Rearrest Permissible. - According to the express terms of this section, a party once discharged may be again arrested and imprisoned for the same cause, provided it be done by the legal order or process of a court of competent jurisdiction. State v. Weatherspoon, 88 N.C. 19 (1883).

CASE NOTES

Inherent Power of Court. - The right to bring a person, whose presence is necessary, before a court for the exercise of its powers is inherent in every court of general jurisdiction, and its exercise is essential to the preservation of its power and dignity. State v. Hoskins, 77 N.C. 530 (1877); Harkins v. Cathey, 119 N.C. 649, 26 S.E. 136 (1896).

Section Inapplicable to State. - This section applies only to parties strictly so called, and not to the State. Ex parte Harris, 73 N.C. 65 (1875), citing State v. Adair, 68 N.C. 68 (1873).

Murderer Is Competent Witness. - One who has been convicted of murder, and is under sentence of death, is a competent witness; and the solicitor (now district attorney) for the State is entitled to a habeas corpus to bring such condemned prisoner into court for the purpose of testifying before the grand jury. Ex parte Harris, 73 N.C. 65 (1875).

Objection to Convicted Witness Untenable. - When the State has procured the attendance of a witness under sentence of death, the objection by the defendant that he could not be procured by writ of habeas corpus ad testificandum under this section is untenable, this not applying to the State; nor will objection avail that the time set for the execution had passed, and the witness, being dead in the eyes of the law, could not testify, the witness having been present and having testified. State v. Jones, 176 N.C. 702, 97 S.E. 32 (1918).

Applied in State v. Rankin, 312 N.C. 592, 324 S.E.2d 224 (1985).

CASE NOTES

Applied in State v. Rankin, 312 N.C. 592, 324 S.E.2d 224 (1985).