State v. . Adair , 68 N.C. 68 ( 1873 )

Solicitor Bynum, for the State, presented the following petition to the court below, to-wit:

(69) "STATE OF NORTH CAROLINA, RUTHERFORD COUNTY, Superior Court, Fall Term, 1872.

S. v. Henderson Adair et al.

To the Honorable Geo. W. Logan, Judge of the 9th Judicial District, sittingfor Rutherford County, in said District:

The petition of W. P. Bynum, Solicitor for said District, prosecuting in behalf of the State, showeth that one Henderson Adair is now confined in the jail of said county, on a charge of the murder of William H. Steadman,alias Lee, and others, all of said county.

That one Martin Bainard is a material witness in behalf of the State, on the trial of said prisoner, without whose testimony he can not safely try said action.

That a bill of indictment against said Henderson Adair, is now pending before the Grand Jury of said county at the present term, and can not be safely proceeded with without said testimony.

That said witness, Martin Bainard, is confined in the common jail of Henderson County, under sentence of death for murder.

Wherefore, the petitioners ask your Honor to grant the State's writ ofhabeas corpus ad testificandum, commanding the sheriff of Henderson County to have the said Martin Bainard before the said Court instanter to testify in behalf of the State in said criminal action as aforesaid. W. P. BYNUM, Solicitor.

Sworn to before me this 1 October, 1872. G. W. LOGAN, J. S.C.

(70) The Court refused to grant the prayer of the petition, from which judgment the State appealed. In this case, the Solicitor of the Eighth Judicial District made application to his Honor, Judge Logan, while holding the Superior Court of Cleveland, for a writ of habeas corpus ad testificandum for one Martin Bainard, then under sentence of death in the jail of Henderson County, alleging as a reason that the said Bainard was a material and necessary witness for the State, in a case pending in said Court against said Adair and others, for the crime of murder.

In regard to the general question as to the right of parties litigant to a writ of habeas corpus ad testificandum for witnesses under sentence for a felony, the Court entertains no doubt that parties litigant have no right to the writ. Laws 1868-'69, chapter 116, section 37, we hold, forbids such writs to issue in favor of parties in any suit, as that would in a measure defeat the sentence of the law pronounced against a felon. But the Court is of opinion that this provision applies only to parties strictly so called, and not to the State.

In S. v. Garland, 29 N.C. 48, RUFFIN, C. J., says, "it is a known and firmly established maxim, that general statutes do not bind the sovereign, unless expressly mentioned in them. Laws are made prima facie for the government of the citizen, and not of the State itself." And his Honor further says, "that the very action then under discussion has a provision which furnishes an example of the rule that the sovereign is not to be brought within the provision of a statute by general words, but only by being expressly named."

The provision in the statute under consideration was 40 and (71) 42 sections, ch. 31, Rev. Stat., which provides that if a suit be commenced in the Superior Court for a less sum than $100 due by bond, it shall be dismissed, and that when a suit is dismissed, or the plaintiff is nonsuited, on the ground that the case is not within the jurisdiction of the Court, the plaintiff shall pay all costs. The State was plaintiff in the case, having brought suit upon a bond for a less sum than $100. Upon this state of facts, his Honor further remarks, "that no one would say that there could be judgment for costs against the State in any case." The Court held the action properly brought. This, then, being the well-established rule in the construction of statutes, we are of opinion that his Honor erred in refusing to grant the prayer of the petition as asked for by the Solicitor for the State, to whose discretion such matters are by our law confided.

Before the Act of 1866, no felon after judgment could testify against anyone, he being regarded as infamous. But it is within the recollection of some of the Court that after a conviction for a capital felony, the Court under the old system, has suspended pronouncing sentence for some three terms at the request of the Solicitor, in order that the convicted prisoner might be used as a witness on the part of the State against his accomplices in the crime, of which he had been convicted. We are satisfied that the act of 1868-'69, did not intend to interfere with the right of the State to use condemned prisoners as witnesses, whenever the prosecuting officer deemed it for the interest of the State to do so.

PER CURIAM. Reversed.

Cited: Harris ex parte, 73 N.C. 66; Guilford v. Georgia, 112 N.C. 38.

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