Article 1. Constitutional Provisions.

§ 17-1. Remedy without delay for restraint of liberty.

Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful; and such remedy ought not to be denied or delayed.

History. Const., art. 1, s. 18; Rev., s. 1819; C.S., s. 2203.

Cross References.

As to costs in habeas corpus, see G.S. 6-21.

Legal Periodicals.

For survey of 1982 criminal law, see 61 N.C.L. Rev. 1060 (1983).

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 N.C. App. LEXIS 3258 (1980).

Habeas corpus is high prerogative writ. In re Burton, 257 N.C. 534, 126 S.E.2d 581, 1962 N.C. LEXIS 386 (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 N.C. LEXIS 1180 (1976).

§ 17-2. Habeas corpus not to be suspended.

The privileges of the writ of habeas corpus shall not be suspended.

History. Const., art. 1, s. 21; Rev., s. 1820; C.S., s. 2204.

Cross References.

For constitutional provision, see N.C. Const., Art. I, § 21.

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 N.C. App. LEXIS 3258 (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).

Article 2. Application.

§ 17-3. Who may prosecute writ.

Every person imprisoned or restrained of his liberty within this State, for any criminal or supposed criminal matter, or on any pretense whatsoever, except in cases specified in G.S. 17-4, may prosecute a writ of habeas corpus, according to the provisions of this Chapter, to inquire into the cause of such imprisonment or restraint, and, if illegal, to be delivered therefrom.

History. 1868-9, c. 116, s. 1; Code, s. 1623; Rev., s. 1821; C.S., s. 2205.

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 N.C. LEXIS 386 (1962).

Habeas corpus is not available as a substitute for appeal. In re Burton, 257 N.C. 534, 126 S.E.2d 581, 1962 N.C. LEXIS 386 (1962).

Judgment must be void as distinguished from erroneous. In re Burton, 257 N.C. 534, 126 S.E.2d 581, 1962 N.C. LEXIS 386 (1962); Brown v. North Carolina, 341 F.2d 87, 1965 U.S. App. LEXIS 6859 (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 N.C. LEXIS 386 (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, 1965 U.S. App. LEXIS 6859 (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 N.C. LEXIS 386 (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 N.C. LEXIS 500 (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 N.C. LEXIS 500 (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 N.C. LEXIS 386 (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 N.C. LEXIS 339 (1881), overruled, Dantzic v. State, 279 N.C. 212, 182 S.E.2d 563, 1971 N.C. LEXIS 770 (1971).

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 N.C. LEXIS 138 (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 N.C. LEXIS 450 (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 N.C. LEXIS 545 (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 N.C. App. LEXIS 536 (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 N.C. App. LEXIS 825 (2013).

§ 17-4. When application denied.

Application to prosecute the writ shall be denied in the following cases:

  1. Where the persons are committed or detained by virtue of process issued by a court of the United States, or a judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts.
  2. Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.
  3. Where any person has willfully neglected, for the space of two whole sessions after his imprisonment, to apply for the writ to the superior court of the county in which he may be imprisoned, such person shall not have a habeas corpus in vacation time for his enlargement.
  4. Where no probable ground for relief is shown in the application.

History. 1868-9, c. 116, s. 2; Code, s. 1624; Rev., s. 1822; C.S., s. 2206; 1971, c. 528, s. 1.

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, 277 N.C. App. 240, 860 S.E.2d 1, 2021- NCCOA-180, 2021 N.C. App. LEXIS 195 (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 N.C. LEXIS 311 (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 N.C. LEXIS 289 (1926); In re Chase, 193 N.C. 450, 137 S.E. 305, 1927 N.C. LEXIS 374 (1927).

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 N.C. LEXIS 13 (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 Stevens, 28 N.C. App. 471, 221 S.E.2d 839, 1976 N.C. App. LEXIS 2732 (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 N.C. App. LEXIS 2732 (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 N.C. LEXIS 318 (1948), overruled, Dantzic v. State, 279 N.C. 212, 182 S.E.2d 563, 1971 N.C. LEXIS 770 (1971).

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 N.C. LEXIS 376 (1906); In re Holley, 154 N.C. 163, 69 S.E. 872, 1910 N.C. LEXIS 177 (1910); Howie v. Spittle, 156 N.C. 180, 72 S.E. 207, 1911 N.C. LEXIS 155 (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 N.C. LEXIS 430 (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 N.C. LEXIS 138 (1884); In re Holley, 154 N.C. 163, 69 S.E. 872, 1910 N.C. LEXIS 177 (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 N.C. LEXIS 177 (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 N.C. LEXIS 403 (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 N.C. LEXIS 154 (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 N.C. LEXIS 154 (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 N.C. App. LEXIS 1180 (1970), cert. denied, 278 N.C. 105, 179 S.E.2d 453, 1971 N.C. LEXIS 950 (1971).

Prior Writ of Habeas Corpus. —

See In re Adams, 218 N.C. 379, 11 S.E.2d 163, 1940 N.C. LEXIS 161 (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 N.C. LEXIS 311 (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 N.C. App. LEXIS 536 (2013).

§ 17-5. By whom application is made.

Application for the writ may be made either by the party for whose relief it is intended or by any person in his behalf.

History. 1868-9, c. 116, s. 3; Code, s. 1625; Rev., s. 1823; C.S., s. 2207.

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).

§ 17-6. To judge of appellate division or superior court in writing.

Application for the writ shall be made in writing, signed by the applicant —

  1. To any one of the justices or judges of the appellate division.
  2. To any one of the superior court judges, either during a session or in vacation.

History. 1868-9, c. 116, s. 4; Code, s. 1626; Rev., s. 1824; C.S., s. 2208; 1969, c. 44, s. 41; 1971, c. 528, s. 2.

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 N.C. LEXIS 356 (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 N.C. LEXIS 14 (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 N.C. LEXIS 14 (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 N.C. LEXIS 154 (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 N.C. LEXIS 386 (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 N.C. LEXIS 386 (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 N.C. LEXIS 27 (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 N.C. LEXIS 27 (1936).

§ 17-7. Contents of application.

The application must state, in substance, as follows:

  1. That the party, in whose behalf the writ is applied for, is imprisoned or restrained of his liberty, the place where, and the officer or person by whom he is imprisoned or restrained, naming both parties, if their names are known, or describing them if they are not known.
  2. The cause or pretense of such imprisonment or restraint, according to the knowledge or belief of the applicant.
  3. If the imprisonment is by virtue of any warrant or other process, a copy thereof shall be annexed, or it shall be made to appear that a copy thereof has been demanded and refused, or that for some sufficient reason a demand for such copy could not be made.
  4. If the imprisonment or restraint is alleged to be illegal, the application must state in what the alleged illegality consists; and that the legality of the imprisonment or restraint has not been already adjudged, upon a prior writ of habeas corpus, to the knowledge or belief of the applicant.
  5. The facts set forth in the application must be verified by the oath of the applicant, or by that of some other credible witness, which oath may be administered by any person authorized by law to take affidavits.

History. 1868-9, c. 116, s. 5; Code, s. 1627; Rev., s. 1825; C.S., s. 2209.

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 N.C. LEXIS 126 (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 N.C. App. LEXIS 536 (2013).

Prior Writ of Habeas Corpus. —

See In re Adams, 218 N.C. 379, 11 S.E.2d 163, 1940 N.C. LEXIS 161 (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 N.C. App. LEXIS 1180 (1970), cert. denied, 278 N.C. 105, 179 S.E.2d 453, 1971 N.C. LEXIS 950 (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).

§ 17-8. Issuance of writ without application.

When the appellate division or superior court division, or any judge of either division, has evidence from any judicial proceeding before such court or judge that any person within this State is illegally imprisoned or restrained of his liberty, it is the duty of said court or judge to issue a writ of habeas corpus for his relief, although no application be made for such writ.

History. 1868-9, c. 116, s. 10; Code, s. 1632; Rev., s. 1826; C.S., s. 2210; 1969, c. 44, s. 42.

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 N.C. LEXIS 154 (1876).

Article 3. Writ.

§ 17-9. Writ granted without delay.

Any court or judge empowered to grant the writ, to whom such applications may be presented, shall grant the writ without delay, unless it appear from the application itself or from the documents annexed that the person applying or for whose benefit it is intended is, by this Chapter, prohibited from prosecuting the writ.

History. 1868-9, c. 116, s. 6; Code, s. 1628; Rev., s. 1827; C.S., s. 2211.

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 N.C. LEXIS 288 (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 N.C. App. LEXIS 536 (2013).

§ 17-10. Penalty for refusal to grant.

If any judge authorized by this Chapter to grant writs of habeas corpus refuses to grant such writ when legally applied for, every such judge shall forfeit to the party aggrieved two thousand five hundred dollars ($2,500).

History. 1868-9, c. 116, s. 9; Code, s. 1631; Rev., s. 1828; C.S., s. 2212.

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 N.C. LEXIS 93 (1918).

§ 17-11. Sufficiency of writ; defects of form immaterial.

No writ of habeas corpus shall be disobeyed on account of any defect of form. It shall be sufficient —

  1. If the person having the custody of the party imprisoned or restrained be designated either by his name of office, if he have any, or by his own name, or, if both such names be unknown or uncertain, he may be described by an assumed appellation, and anyone who may be served with the writ shall be deemed the person to whom it is directed, although it may be directed to him by a wrong name, or description, or to another person.
  2. If the person who is directed to be produced be designated by name, or if his name be uncertain or unknown, he may be described by an assumed appellation or in any other way, so as to designate the person intended.

History. 1868-9, c. 116, ss. 7, 8; Code, ss. 1629, 1630; Rev., s. 1829; C.S., s. 2213.

§ 17-12. Service of writ.

The writ of habeas corpus may be served by any qualified elector of this State thereto authorized by the court or judge allowing the same. It may be served by delivering the writ, or a copy thereof, to the person to whom it is directed; or, if such person cannot be found, by leaving it, or a copy, at the jail, or other place in which the party for whose relief it is intended is confined, with some under officer or other person of proper age; or, if none such can be found, or if the person attempting to serve the writ be refused admittance, by affixing a copy thereof in some conspicuous place on the outside, either of the dwelling house of the party to whom the writ is directed or of the place where the party is confined for whose relief it is sued out.

History. 1868-9, c. 116, s. 32; Code, s. 1657; Rev., s. 1833; C.S., s. 2214.

Article 4. Return.

§ 17-13. When writ returnable.

Writs of habeas corpus may be made returnable at a certain time, or forthwith, as the case may require. If the writ be returnable at a certain time, such return shall be made and the party shall be produced at the time and place specified therein.

History. 1868-9, c. 116, s. 31; Code, s. 1656; Rev., s. 1830; C.S., s. 2215.

§ 17-14. Contents of return; verification.

The person or officer on whom the writ is served must make a return thereto in writing, and, except where such person is a sworn public officer and makes his return in his official capacity, it must be verified by his oath. The return must state plainly and unequivocally —

  1. Whether he has or has not the party in his custody or under his power or restraint.
  2. If he has the party in his custody or power, or under his restraint, the authority and the cause of such imprisonment or restraint, setting forth the same at large.
  3. If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return; and the original shall be produced and exhibited on the return of the writ to the court or judge before whom the same is returnable.
  4. If the person or officer upon whom such writ is served has had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause and by what authority such transfer took place.

History. 1868-9, c. 116, s. 11; Code, s. 1633; Rev., s. 1831; C.S., s. 2216.

§ 17-15. Production of body if required.

If the writ requires it, the officer or person on whom the same has been served shall also produce the body of the party in his custody or power, according to the command of the writ, except in the case of the sickness of such party, as hereinafter provided.

History. 1868-9, c. 116, s. 14; Code, s. 1636; Rev., s. 1832; C.S., s. 2217.

Article 5. Enforcement of Writ.

§ 17-16. Attachment for failure to obey.

If the person or officer on whom any writ of habeas corpus has been duly served refuses or neglects to obey the same, by producing the body of the party named or described therein, and by making a full and explicit return thereto, within the time required, and no sufficient excuse is shown for such refusal or neglect, it is the duty of the court or judge before whom the writ has been made returnable, upon due proof of the service thereof, forthwith to issue an attachment against such person or officer, directed to the sheriff of any county within this State, and commanding him forthwith to apprehend such person or officer and bring him immediately before such court or judge. On being so brought such person or officer shall be committed to close custody in the jail of the county where such court or judge may be, without being allowed the liberties thereof, until such person or officer make return to such writ and comply with any order that may be made by such court or judge in relation to the party for whose relief the writ has been issued.

History. 1868-9, c. 116, s. 15; Code, s. 1637; Rev., s. 1834; C.S., s. 2218.

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).

§ 17-17. Liability of judge refusing attachment.

If any judge willfully refuses to grant the writ of attachment, as provided for in G.S. 17-16, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars ($2,500).

History. 1870-1, c. 221, s. 2; Code, s. 1638; Rev., s. 1835; C.S., s. 2219.

§ 17-18. Attachment against sheriff to be directed to coroner; procedure.

If a sheriff has neglected to return the writ agreeably to the command thereof, the attachment against him may be directed to the coroner or to any other person to be designated therein, who shall have power to execute the same, and such sheriff, upon being brought up, may be committed to the jail of any county other than his own.

History. 1868-9, c. 116, s. 16; Code, s. 1639; Rev., s. 1836; C.S., s. 2220.

Cross References.

As to requirement of coroner to act for sheriff in certain cases, see G.S. 152-8.

§ 17-19. Precept to bring up party detained.

The court or judge by whom any such attachment may be issued may also at the same time, or afterwards, direct a precept to any sheriff, coroner, or other person to be designated therein, commanding him to bring forthwith before such court or judge the party, wherever to be found, for whose benefit the writ of habeas corpus has been granted.

History. 1868-9, c. 116, s. 17; Code, s. 1640; Rev., s. 1837; C.S., s. 2221.

§ 17-20. Liability of judge refusing precept.

If any judge refuses to grant the precept provided for in G.S. 17-19, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars ($2,500).

History. 1870-1, c. 221, s. 3; Code, s. 1641; Rev., s. 1838; C.S., s. 2222.

§ 17-21. Liability of judge conniving at insufficient return.

If any judge grants the attachment, or the precept, and gives the officer or other person charged with the execution of the same verbal or written instructions not to execute the same, or to make any evasive or insufficient return, or any return other than that provided by law; or shall connive at the failing to make any return or any evasive or insufficient return, or any return other than that provided by law, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars ($2,500).

History. 1870-1, c. 221, s. 4; Code, s. 1642; Rev., s. 1839; C.S., s. 2223.

§ 17-22. Power of county to aid service.

In the execution of any such attachment, precept or writ, the sheriff, coroner, or other person to whom it may be directed, may call to his aid the power of the county, as in other cases.

History. 1868-9, c. 116, s. 18; Code, s. 1643; Rev., s. 1840; C.S., s. 2224.

CASE NOTES

Posse comitatus discussed. —

See Worth v. Commissioners of Craven County, 118 N.C. 112, 24 S.E. 778, 1896 N.C. LEXIS 17 (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).

§ 17-23. Obedience to order of discharge compelled.

Obedience to a judgment or order for the discharge of a prisoner or person restrained of his liberty, pursuant to the provisions of this Chapter, may be enforced by the court or judge by attachment in the same manner and with the same effect as for a neglect to make return to a writ of habeas corpus; and the person found guilty of such disobedience shall forfeit to the party aggrieved two thousand five hundred dollars ($2,500), besides any special damages which such party may have sustained.

History. 1868-9, c. 116, s. 24; Code, s. 1649; Rev., s. 1841; C.S., s. 2225.

§ 17-24. No civil liability for obedience.

No officer or other person shall be liable to any civil action for obeying a judgment or order of discharge upon writ of habeas corpus.

History. 1868-9, c. 116, s. 25; Code, s. 1650; Rev., s. 1842; C.S., s. 2226.

§ 17-25. Recommittal after discharge; penalty.

If any person shall knowingly again imprison or detain one who has been set at large upon any writ of habeas corpus, for the same cause, other than by the legal process or order of the court wherein he is bound by recognizance to appear, or of any other court having jurisdiction in the case, he shall be guilty of a Class 1 misdemeanor.

History. 1868-9, c. 116, s. 26; Code, s. 1651; Rev., s. 3581; C.S., s. 2227; 1993, c. 539, s. 306; 1994, Ex. Sess., c. 24, s. 14(c).

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 v. Weatherspoon, 88 N.C. 19, 1883 N.C. LEXIS 9 (1883).

§ 17-26. Disobedience to writ or refusing copy of process; penalty.

If any person to whom a writ of habeas corpus is directed shall neglect or refuse to make due return thereto, or to bring the body of the party detained according to the command of the writ without delay, or shall not, within six hours after demand made therefor, deliver a copy of the commitment or cause of detainer, such person shall, upon conviction on indictment, be fined one thousand dollars ($1,000), or imprisoned not exceeding 12 months, and if such person be an officer, shall moreover be removed from office.

History. 1868-9, c. 116, s. 27; Code, s. 1652; Rev., s. 3597; C.S., s. 2228.

§ 17-27. Penalty for false return.

If any person shall make a false return to a writ of habeas corpus, he shall be guilty of a Class 1 misdemeanor.

History. 1868-9, c. 116, s. 28; Code, s. 1653; Rev., s. 3582; C.S., s. 2229; 1993, c. 539, s. 307; 1994, Ex. Sess., c. 24, s. 14(c).

§ 17-28. Penalty for concealing party entitled to writ.

If anyone having in his custody, or under his power, any party who, by law, would be entitled to a writ of habeas corpus, or for whose relief such writ shall have been issued, shall, with intent to elude the service of such writ, or to avoid the effect thereof, transfer the party to the custody, or put him under the power or control, of another, or shall conceal or change the place of his confinement, or shall knowingly aid or abet another in so doing, he shall be guilty of a Class 1 misdemeanor.

History. 1868-9, c. 116, ss. 29, 30; Code, ss. 1654, 1655; Rev., s. 3583; C.S., s. 2230; 1993, c. 539, s. 308; 1994, Ex. Sess., c. 24, s. 14(c).

Article 6. Proceedings and Judgment.

§ 17-29. Notice to interested parties.

When it appears from the return to the writ that the party named therein is in custody on any process, or by reason of any claim of right, under which any other person has an interest in continuing his imprisonment or restraint, no order shall be made for his discharge until it appears that the person so interested, or his attorney, if he have one, has had reasonable notice of the time and place at which such writ is returnable.

History. 1868-9, c. 116, s. 12; 1870-1, c. 221, s. 1; Code, s. 1634; Rev., s. 1843; C.S., s. 2231.

§ 17-30. Notice to district attorney.

When it appears from the return that such party is detained upon any criminal accusation, the court or judge may, if he thinks proper, make no order for the discharge of such party until sufficient notice of the time and place at which the writ has been returned, or is made returnable, is given to the district attorney of the district in which the person prosecuting the writ is detained.

History. 1868-9, c. 116, s. 13; Code, s. 1635; Rev., s. 1844; C.S., s. 2232; 1973, c. 47, s. 2.

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 N.C. LEXIS 148 (1893).

§ 17-31. Subpoenas to witnesses.

Any party to a proceeding on a writ of habeas corpus may procure the attendance of witnesses at the hearing, by subpoena, to be issued by the clerk of any superior court, under the same rules, regulations and penalties prescribed by law in other cases.

History. 1868-9, c. 116, s. 34; Code, s. 1659; Rev., s. 1845; C.S., s. 2233.

Cross References.

As to issuance of subpoenas, see G.S. 7A-103 and 8-59.

§ 17-32. Proceedings on return; facts examined; summary hearing of issues.

The court or judge before whom the party is brought on a writ of habeas corpus shall, immediately after the return thereof, examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same has been upon commitment for any criminal or supposed criminal matter or not; and if issue be taken upon the material facts in the return, or other facts are alleged to show that the imprisonment or detention is illegal, or that the party imprisoned is entitled to his discharge, the court or judge shall proceed, in a summary way, to hear the allegations and proofs on both sides, and to do what to justice appertains in delivering, bailing or remanding such party.

History. 1868-9, c. 116, s. 19; Code, s. 1644; Rev., s. 1846; C.S., s. 2234.

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 N.C. LEXIS 189 (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 N.C. LEXIS 401 (1932), rev'd, 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292, 1933 U.S. LEXIS 187 (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 N.C. LEXIS 175 (1890); In re Bailey, 203 N.C. 362, 166 S.E. 165, 1932 N.C. LEXIS 401 (1932), rev'd, 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292, 1933 U.S. LEXIS 187 (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 N.C. LEXIS 362 (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 N.C. LEXIS 403 (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 N.C. LEXIS 374 (1927).

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 N.C. LEXIS 571 (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 N.C. LEXIS 154 (1876); Ex parte McCown, 139 N.C. 95, 51 S.E. 957, 1905 N.C. LEXIS 100 (1905); In re Croom, 175 N.C. 455, 95 S.E. 903, 1918 N.C. LEXIS 93 (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 N.C. LEXIS 148 (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 N.C. LEXIS 386 (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 N.C. LEXIS 177 (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 N.C. LEXIS 403 (1917); In re Croom, 175 N.C. 455, 95 S.E. 903, 1918 N.C. LEXIS 93 (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, 60 N.C. 318, 1864 N.C. LEXIS 34 (1864); Ex parte Biggs, 64 N.C. 202, 1870 N.C. LEXIS 65 (1870); State v. Jefferson, 66 N.C. 309, 1872 N.C. LEXIS 51 (1872); State v. Herndon, 107 N.C. 934, 12 S.E. 268, 1890 N.C. LEXIS 175 (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 N.C. LEXIS 177 (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 N.C. LEXIS 93 (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, 60 N.C. 318, 1864 N.C. LEXIS 34 (1864); State v. Miller, 97 N.C. 451, 1 S.E. 776, 1887 N.C. LEXIS 189 (1887); State v. Herndon, 107 N.C. 934, 12 S.E. 268, 1890 N.C. LEXIS 175 (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 N.C. LEXIS 177 (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 N.C. LEXIS 175 (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 N.C. LEXIS 56 (1867).

§ 17-33. When party discharged.

If no legal cause is shown for such imprisonment or restraint, or for the continuance thereof, the court or judge shall discharge the party from the custody or restraint under which he is held. But if it appears on the return to the writ that the party is in custody by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, such party can be discharged only in one of the following cases:

  1. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.
  2. Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged.
  3. Where the process is defective in some matter of substance required by law, rendering such process void.
  4. Where the process, though in proper form, has been issued in a case not allowed by law.
  5. Where the person, having the custody of the party under such process, is not the person empowered by law to detain him.
  6. Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.

History. 1868-9, c. 116, s. 20; Code, s. 1645; Rev., s. 1847; C.S., s. 2235.

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, 277 N.C. App. 240, 860 S.E.2d 1, 2021- NCCOA-180, 2021 N.C. App. LEXIS 195 (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 N.C. App. LEXIS 2732 (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 N.C. App. LEXIS 2732 (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 N.C. App. LEXIS 2732 (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 N.C. LEXIS 571 (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 N.C. LEXIS 138 (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 N.C. App. LEXIS 978 (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 N.C. LEXIS 189 (1887); In re Williams, 149 N.C. 436, 63 S.E. 108, 1908 N.C. LEXIS 370 (1908).

§ 17-34. When party remanded.

It is the duty of the court or judge forthwith to remand the party, if it appears that he is detained in custody, either —

  1. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction.
  2. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.
  3. For any contempt specially and plainly charged in the commitment by some court, officer or body having authority to commit for the contempt so charged.
  4. That the time during which such party may be legally detained has not expired.

History. 1868-9, c. 116, s. 21; Code, s. 1646; Rev., s. 1848; C.S., s. 2236.

§ 17-35. When the party bailed or remanded.

If it appears that the party has been legally committed for any criminal offense, or if it appears by the testimony offered with the return of the writ, or upon the hearing thereof, that the party is guilty of such an offense, although the commitment is irregular, the court or judge shall proceed to let such party to bail, if the case is bailable and good bail is offered; if not, the court or judge shall forthwith remand such party to the custody or place him under the restraint from which he was taken, if the person or officer, under whose custody or restraint he was, is legally entitled thereto; if not so entitled, the court or judge shall commit such party to the custody of the officer or person legally entitled thereto.

History. 1868-9, c. 116, s. 22; Code, s. 1647; Rev., s. 1849; C.S., s. 2237.

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 N.C. LEXIS 1180 (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 N.C. LEXIS 175 (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 N.C. LEXIS 175 (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 N.C. LEXIS 403 (1917).

§ 17-36. Party held in execution not to be discharged.

When a writ of habeas corpus cum causa issues and the sheriff or other officer to whom it is directed returns upon the same that the prisoner is condemned, by judgment given against him, and held in custody by virtue of an execution issued against him, the prisoner shall not be let to bail but shall be presently remanded, where he shall remain until discharged in due course of law.

History. 2 Hen. V, c. 2; R.C., c. 31, s. 111; Code, s. 937; Rev., s. 1850; C.S., s. 2238.

§ 17-37. When party ill, cause determined in his absence.

When, from the illness or infirmity of the person directed to be produced by a writ of habeas corpus, such person cannot, without danger, be brought before the court or judge where the writ is made returnable, the party in whose custody he is may state the fact in his return to the writ; and if the court or judge is satisfied of the truth of the allegation, and the return is otherwise sufficient, the court or judge shall proceed to decide on such return and to dispose of the matter in the same manner as if the body had been produced.

History. 1868-9, c. 116, s. 23; Code, s. 1648; Rev., s. 1851; C.S., s. 2239.

§ 17-38. No second committal after discharge; penalty.

No person who has been set at large upon any writ of habeas corpus shall be again imprisoned or detained for the same cause by any person whatsoever other than by the legal order or process of the court wherein he shall be bound by recognizance to appear or of any other court having jurisdiction in the case, under the penalty of two thousand five hundred dollars ($2,500) to the party aggrieved thereby.

History. 1868-9, c. 116, s. 26; Code, s. 1651; Rev., s. 1852; C.S., s. 2240.

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 N.C. LEXIS 376 (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 N.C. LEXIS 9 (1883).

Article 7. Habeas Corpus for Custody of Children in Certain Cases. [Repealed]

§§ 17-39 through 17-40. [Repealed]

Repealed by Session Laws 1967, c. 1153, s. 1.

Cross References.

As to action or proceeding for custody of minor child, see G.S. 50-13.1 et seq.

Article 8. Habeas Corpus Ad Testificandum.

§ 17-41. Authority to issue the writ.

Every court of record has power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court any prisoner who may be detained in any jail or prison within the State, for any cause, except a prisoner under sentence for a capital felony, to be examined as a witness in such suit or proceeding in behalf of the party making the application.

Such writ of habeas corpus may be issued by any magistrate or clerk of the superior court, upon application as provided in this section, to bring any person confined in the jail or prison of the same county where such magistrate or clerk may reside, to be examined as a witness before such magistrate or clerk.

In cases where the testimony of any prisoner is needed in a proceeding before a magistrate, or a clerk, and such person is confined in a county in which such magistrate or clerk does not reside, application for habeas corpus to testify may be made to any justice or judge of the General Court of Justice.

History. 1868-9, c. 116, ss. 37, 38; Code, ss. 1663, 1664; Rev., ss. 1855, 1856; C.S., s. 2243; 1969, c. 44, s. 43; 1971, c. 528, s. 3.

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 N.C. LEXIS 145 (1877); Harkins v. Cathey, 119 N.C. 649, 26 S.E. 136, 1896 N.C. LEXIS 356 (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 N.C. LEXIS 15 (1875) (citing) State v. Adair, 68 N.C. 68, 1873 N.C. LEXIS 16 (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 N.C. LEXIS 15 (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 N.C. LEXIS 334 (1918).

§ 17-42. Contents of application.

The application for the writ shall be made by the party to the suit or proceeding in which the writ is required, or by his agent or attorney. It must be verified by the applicant; and shall state —

  1. The title and nature of the suit or proceeding in regard to which the testimony of such prisoner is desired.
  2. That the testimony of such prisoner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by counsel and verily believes.

History. 1868-9, c. 116, s. 39; Code, s. 1665; Rev., s. 1857; C.S., s. 2244.

§ 17-43. Service of writ.

The writ of habeas corpus to testify shall be served by the same person, and in like manner in all respects, and enforced by the court or officer issuing the same as prescribed in this Chapter for the service and enforcement of the writ of habeas corpus cum causa.

History. 1868-9, c. 116, s. 40; Code, s. 1666; Rev., s. 1858; C.S., s. 2245.

§ 17-44. Applicant to pay expenses and give bond to return.

The service of the writ shall not be complete, however, unless the applicant for the same tenders to the person in whose custody the prisoner may be, if such person is a sheriff, coroner, or marshal, the fees and expenses allowed by law for bringing such prisoner, nor unless he also gives bond, with sufficient security, to such sheriff, coroner, or marshal, as the case may be, conditioned that such applicant will pay the charges of carrying back such prisoner.

History. 1868-9, c. 116, s. 41; Code, s. 1667; Rev., s. 1859; C.S., s. 2246; 1971, c. 528, s. 4.

§ 17-45. Duty of officer to whom writ delivered or on whom served.

It is the duty of the officer to whom the writ is delivered or upon whom it is served, whether such writ is directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed, to obey and return such writ according to the exigency thereof upon pain, on refusal or neglect, to forfeit to the party on whose application the same has been issued the sum of five hundred dollars ($500.00).

History. 1868-9, c. 116, s. 42; Code, s. 1668; Rev., s. 1860; C.S., s. 2247.

§ 17-46. Prisoner to be remanded.

After having testified, the prisoner shall be remanded to the prison from which he was taken.

History. 1868-9, c. 116, s. 43; Code, s. 1669; Rev., s. 1861; C.S., s. 2248.