In Re Mitchell

CONNOR, J.

It appears from the record in this cause, as certified to this Court in response to the writ of certiorari issued on 11 October, 1933, that the warrant under which the petitioner, J. Wayman Mitchell was arrested, and under which he was held in custody by the sheriff of Cabarrus County, the respondent in the habeas corpus proceeding, was regular and valid in all respects. N. 0. Code of 1931, section 4556(1). Chapter 124, sec. 11, Public Laws of N. 0., 1931. There was no error in the judgment remanding the petitioner to the custody of the respondent.

It does not appear from the record, however, that the petitioner had been taken by the sheriff before the justice of the peace who issued the warrant, for a hearing as provided by the statute, prior to the issuance of the writ of habeas corpus. The petitioner is entitled to a hearing before the justice of the peace, before he can be committed to await the issuance of an extradition warrant by the Governor of this State. At such hearing the justice of the peace will determine whether the petitioner shall be committed to await the issuance of an extradition warrant, or shall be discharged. The petitioner cannot be lawfully delivered to the authorities of the State of Tennessee, until the Governor of this State has honored a requisition from the Governor of the State of Tennessee for the petitioner. It was error to order the sheriff of Cabarrus County to deliver the petitioner to the authorities of the State of Tennessee, upon their demand. As modified in accordance with this opinion, the judgment is

Affirmed.