In Re Renfrow

100 S.E.2d 315 (1957)

247 N.C. 55

In re Benjamin Edgar RENFROW. STATE v. RENFROW.

No. 146.

Supreme Court of North Carolina.

October 30, 1957.

*317 William E. Craft, Kenansville, and Carl V. Venters, Jacksonville, for defendant, appellant.

Atty. Gen. George B. Patton and Asst. Atty. Gen. Harry W. McGalliard, for the State.

BOBBITT, Justice.

Except in cases involving the custody of minor children, G.S. § 17-40, no appeal lies from a judgment rendered on return to a writ of habeas corpus. In re Steele, 220 N.C. 685, 687, 18 S.E.2d 132, and cases cited. The remedy, if any, is by petition for a writ of certiorari, addressed to the sound discretion of this Court. In re Lee Croom, 175 N.C. 455, 95 S.E. 903.

Under the rules stated, petitioner's purported appeal would be dismissed. However, to clarify the important question of practice presented by the record, this Court deems it appropriate to treat petitioner's purported appeal as a petition for writ of certiorari. Art. IV, sec. 8, Constitution of North Carolina; State v. Burnette, 173 N.C. 734, 739, 91 S.E. 364. So treated, the petition is allowed; and we consider the questions presented as upon return to our writ of certiorari.

The sole question for determination upon habeas corpus hearing for alleged unlawful imprisonment is whether petitioner is then being unlawfully deprived of his liberty. In re Swink, 243 N.C. 86, 92, 89 S.E.2d 792; In re Young, 222 N.C. 708, 24 S.E.2d 539; In re Parker, 144 N.C. 170, 56 S.E. 878; 25 Am.Jur., Habeas Corpus sec. 2; 39 C.J.S. Habeas Corpus § 4. In this connection, it is noted that the writ of habeas corpus, a "high prerogative writ," is to be made returnable at a certain time and place specified therein; and the particular judge before whom it is returnable need not be either the resident or the presiding judge of a particular judicial district or the presiding judge at any particular term of court. McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684.

It appears that the April 1, 1957, Criminal Term, of Duplin, adjourned April 2, 1957, the very day the clerk received this Court's certificate of its affirmance of the judgment pronounced at August Term, *318 1956; and that petitioner's said motion was made April 5, 1957, the very day he was to make his appearance at said April 1st Criminal Term, 1957. Unquestionably, his said motion was made in apt time. State v. Casey, 201 N.C. 620, 161 S.E. 81; State v. Cox, 202 N.C. 378, 162 S.E. 907; State v. Moore, 202 N.C. 841, 163 S.E. 700; State v. Lea, 203 N.C. 316, 166 S.E. 292; State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Smith, 245 N.C. 230, 95 S.E.2d 576; State v. Mooring, 245 N.C. 698, 97 S.E.2d 117.

Petitioner's position, as asserted in his petition for writ of habeas corpus, was that he was entitled to be at liberty under bond pending the hearing at August Term, 1957, of his motion for a new trial on the ground of newly discovered evidence.

Petitioner did not request or consent that Judge Morris hear this motion at the April 22nd Civil Term, 1957. On the contrary, prior to the hearing by Judge Morris, petitioner insisted that this motion was for hearing and determination at the August Term, 1957.

The sole question presented at the hearings before Judge McKeithen and Judge Morris on return to writ of habeas corpus was whether petitioner was then unlawfully imprisoned. Nothing in the record indicates that petitioner's motion for a new trial on the ground of newly discovered evidence had been set for hearing either before Judge McKeithen or before Judge Morris. It is noted that Judge McKeithen's order, transferring the matter for hearing by the presiding judge at the April 22nd Civil Term, 1957, of Duplin, simply allowed the petitioner to be at liberty under bond pending further hearing on return to the writ of habeas corpus. Petitioner's assignments of error are directed to the order of Judge Morris.

Except as otherwise provided, each term of superior court "shall continue in session one week, and be for the trial of criminal and civil cases * * * unless the business thereof shall be sooner disposed of." G.S. § 7-70. Thus, except as otherwise provided, each term of court is a combination or mixed term, that is, a term for the trial of both criminal and civil cases. But G.S. § 7-70 expressly provides otherwise as to many specific terms of court.

With reference to Duplin County, G.S. § 7-70, in pertinent part, provides: (1) That the term referred to herein as the April 1st Criminal Term, 1957, was a term to commence "the fourth Monday after the first Monday in March to continue one week for the trial of criminal cases only." (2) The term referred to herein as the April 22nd Civil Term, 1957, was a term to commence "the seventh Monday after the first Monday in March to continue one week for the trial of civil cases only." (3) The term referred to herein as the August Term, 1957, was a term to commence "the first Monday before the first Monday in September"; and this term, because not otherwise provided, was a term for the trial of both criminal and civil cases.

G.S. § 7-73 provides: "No criminal business at civil terms.No grand juries shall be drawn for the terms of court designated by law as being for the trial of civil cases exclusively, and the solicitors shall not be required to attend upon any exclusively civil terms, unless there are cases on the civil docket in which they officially appear, and no criminal process shall be returnable to any term designated for the trial of civil actions alone."

Provisions now incorporated in G.S. § 7-73 may be traced to secs. 3 and 7 of Ch. 28, Public Laws of 1901; and provisions now incorporated in G.S. § 7-70, including the designation of certain terms "for the trial of civil cases only," may be traced to other sections of said 1901 Act. Provisions of secs. 3 and 7 of said 1901 Act were codified as sec. 1508, Revisal of 1905, and as sec. 1445, Consolidated Statutes of 1919, and as G.S. § 7-73. It is note-worthy *319 that sec. 1508, Revisal of 1905, bears the caption, "No grand jury drawn nor criminal process returnable to or solicitors attend, civil terms"; but, when the General Assembly adopted the Consolidated Statutes of 1919, the caption was changed to that now appearing in G.S. § 7-73, to wit, "No criminal business at civil terms." It is noted further that said Act of 1901, also an amendatory statute, to wit, Ch. 196, Public Laws of 1913, contained the provision "that no criminal process shall be returnable to any term designated in this act for the trial of civil actions alone." (Italics added.) Moreover, sec. 1508, Revisal of 1905, contained the provision that "no criminal process shall be returnable to any term designated in this chapter for the trial of civil actions alone." (Italics added.) It is obvious that G.S. § 7-70 and G.S. § 7-73 are parts of one pattern and are to be construed in pari materia.

When G.S. § 7-70 and G.S. § 7-73 are so construed, the legislative intent is clear, and we so hold, that a motion which, if allowed, would set aside a verdict and judgment in a case on the criminal docket, specifically, a motion for a new trial on the ground of newly discovered evidence, may not be determined at a term, such as the April 22nd Civil Term, 1957, of Duplin, expressly restricted by statute as a term "for the trial of civil cases only." Such a motion is for determination at a term of the court (in which the verdict and judgment to which the motion is addressed were rendered) provided for the trial of criminal cases. Consequently, petitioner was entitled to have his motion heard at August Term, 1957; and his assignment of error based on his Exception No. 1 is sustained.

Even so, petitioner was not entitled to be at liberty under bond as a matter of right pending the hearing of the motion. Here, the clerk did exactly what G.S. § 15-186 explicitly provided that he should do, namely, issue commitment to the sheriff; and the sheriff did exactly what G.S. § 15-186 explicitly provided that he should do, namely, "proceed to execute the sentence which was appealed from." It is noted that the sentence appealed from was imposed by a final judgment pronounced at August Term, 1956. Compare: State v. Bowser, 232 N.C. 414, 61 S.E.2d 98. G.S. § 17-4 provides that "application to prosecute the writ shall be denied * * * 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." In re Taylor, 229 N.C. 297, 303, 49 S.E.2d 749, and cases cited.

Accepting at face value petitioner's allegations, the assurance by the district solicitor that petitioner need not appear until Friday, April 5th, had no bearing upon the right and duty of the clerk and sheriff to proceed under G.S. § 15-186. Moreover, there is nothing to suggest that, when he "contacted" the district solicitor, petitioner intimated that he intended to move at the April Criminal Term, 1957, or thereafter, for a new trial on the ground of newly discovered evidence. Rather, the implication is that the district solicitor did nothing more than assure petitioner that he need not appear to be taken into custody until Friday, April 5th; and petitioner was not taken into custody until that date.

The calling of petitioner and the allowance of the solicitor's motion for capias and commitment added nothing to the authority vested in the clerk by G.S. § 15-186. No question is presented as to the relevancy of this fact in relation to the liability of those obligated on petitioner's appearance bond.

The fact that petitioner made a motion for a new trial on the ground of newly discovered evidence did not suspend or otherwise affect the express provisions of G.S. § 15-186 or entitle petitioner to bond as a matter of right pending hearing thereon. At the hearing on return to writ of habeas corpus, the precise question, as related to matters pertinent to petitioner's *320 pending motion for a new trial on the ground of newly discovered evidence, was limited to whether petitioner's evidence was of sufficient weight to cause the judge, in his discretion, to release petitioner under bond conditioned on his appearance at the next term for the trial of criminal cases for final hearing on his said motion.

It appears that Judge Morris, over petitioner's objection, proceeded to hear the motion for a new trial as upon a final hearing of such motion. In this, we hold that he was in error. However, it is noted that, upon findings of fact to which there is no exception, and in the exercise of his discretion, he denied the motion. Had the motion been properly before him on such hearing, the ruling of Judge Morris would not be subject to review on appeal; for there is no suggestion of abuse of discretion. State v. Williams, 244 N.C. 459, 94 S.E.2d 374. A fortiori, no appeal lies from his discretionary denial of petitioner's asserted right to be released under bond pending final hearing on the motion.

The result is that the portion of Judge Morris' order discharging the writ of habeas corpus and ordering the petitioner into custody is affirmed; but, petitioner having made his motion for a new trial on the ground of newly discovered evidence in apt time, the order of Judge Morris should be modified so that petitioner may be heard de novo on his said motion at a term of Duplin Superior Court for the trial of criminal cases. It is so ordered.

Modified and affirmed.