State v. . Dunn , 159 N.C. 470 ( 1912 )

The facts are sufficiently stated in the opinion of the Court by Mr. CHIEF JUSTICE CLARK. The defendant was convicted upon an indictment, in the usual form, for illegal sale of intoxicating liquors. On appeal to this Court, the judgment was affirmed. The defendant then sued out a writ of habeas corpus before a judge of the Superior Court, alleging that the conviction had been obtained upon illegal evidence. The judge refused to discharge the prisoner, whereupon he appealed to this Court. Afterwards, in deference to the decision In re Holley, 154 N.C. 164, he withdrew said appeal and applied to this Court for a writ of certiorari. This was granted, and the question now presented is whether there was error in refusing to discharge the petitioner upon habeas corpus.

It is true that when it appears upon the inspection of the record itself that the court imposing the sentence was without jurisdiction, the prisoner can be discharged upon habeas corpus upon the ground that the judgment is void, but the writ cannot be used in the nature of a writ of error. If the petitioner is in custody by virtue of the (472) judgment of a competent court, the statute forbids the writ to be issued. Revisal, 1822 (2); S. v. Webb, 155 N.C. 426; Howie v. Spittle,156 N.C. 180; Ledford v. Emerson, 143 N.C. 536. The remedy is by appeal from the original judgment. In this case the indictment and judgment are in every respect regular upon their face. The court below could not go behind the record and find that the defendant was convicted upon evidence which was illegal because authorized by an alleged unconstitutional statute. This would be for one Superior Court Judge to examine into the proceedings before another judge, upon parol evidence, and review his action.

Besides, in this case, the defendant had appealed to this Court, which had adjudged no error, and this proceeding is in effect an attempt to procure a rehearing of the cause upon a habeas corpus before another judge of the Superior Court.

This point is not before us, for the reasons above given, but we may say that the statute thus irregularly attempted to be called in question was passed upon and construed in S. v. McIntyre, 139 N.C. 599, and as there construed, no Federal question can arise in regard to it. When a Federal question arises it must be presented by an exception taken at the trial upon the merits, and be reviewed on appeal in that case. It could not be presented in this irregular method. The judgment in refusing to discharge the prisoner is

Affirmed.