In Re Palmer

144 S.E.2d 413 (1965)

265 N.C. 485

In the Matter of Imprisonment of William C. PALMER.

No. 370.

Supreme Court of North Carolina.

October 20, 1965.

*415 W. H. Childs, Jr., Dist. Sol. of Sixteenth Solicitorial Dist., for Recorder's Court of Caldwell County.

Byrd & Byrd, Morganton, for contemner.

PER CURIAM.

Direct contempt of court is punishable summarily, and the offended court is only required to "cause the particulars of the offense to be specified on the record." In re Burton, 257 N.C. 534, 126 S.E.2d 581; Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822; G.S. § 5-5. No appeal shall lie from an order of direct contempt. G.S. § 5-2; Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345. A contemner imprisoned in consequence of a judgment of direct contempt may seek relief by habeas corpus. However, the only question open to inquiry at the habeas corpus hearing is whether, on the record, the court which imposed the sentence had jurisdiction and acted within its lawful authority. In re Renfrow, 247 N.C. 55, 100 S.E.2d 315; State v. Hooker, 183 N.C. 763, 111 S.E. 351. The facts found by the committing court are binding on the judge at the habeas corpus hearing, the only question being whether the judgment was warranted by law and within the jurisdiction of the court. In re Adams, 218 N.C. 379, 11 S.E.2d 163. In habeas corpus proceedings, the court is not permitted to act as one of errors and appeals; to justify relief the judgment of imprisonment must be void as distinguished from erroneous. State v. Edwards, 192 N.C. 321, 135 S.E. 37; In re Burton, supra. The court hearing the matter on habeas corpus may not try the cause de novo, hear testimony of witnesses, or find facts in conflict with those found by the judge who imposed the sentence. In the habeas corpus proceeding the judge merely reviews the record and determines whether the court which imposed sentence had jurisdiction and whether the facts found and specified on the record are sufficient to support the imposition of sentence.

It is clear that the judge below misconceived the scope of his duty and authority. He was bound by the facts found by Judge Beal (but not the factual conclusions). He could not hear testimony of witnesses or consider evidence de hors the record, and therefrom find independent facts. He could only determine whether the facts found by Judge Beal are sufficient to support the judgment. In re Croom, 175 N.C. 455, 95 S.E. 903.

A habeas corpus proceeding is a collateral attack on a judgment of imprisonment, and an order in the proceeding discharging the prisoner is not equivalent to a verdict of not guilty. No appeal lies from an order made in a habeas corpus proceeding except in cases involving custody of children) but such order may be reviewed on certiorari. State v. Edwards, 192 N.C. 321, 135 S.E. 37. Whether certiorari will be granted rests in the sound discretion of the Court. In re McCade, 183 N.C. 242, 111 S.E. 3; In re Croom, supra.

After a careful examination of the record, this Court, in the exercise of its discretion, declines to issue writ of certiorari.

Petition denied.