The application of the petitioner is for the twofold purpose of obtaining the writ of habeas corpus, directed to John A. Lackey, sheriff of Burke County, in whose custody the prisoner is alleged to be, commanding said sheriff to bring his body before this Court, to the end that the lawfulness of his imprisonment may be inquired of; and also that a writ ofcertiorari may issue to the clerk of the Superior Court of that county requiring him to send up a transcript of the record of the proceedings in which the imprisonment was adjudged, that the same may be reviewed.
Upon an examination of the petition we find two insuperable obstacles in the way of granting the writ of habeas corpus. *Page 496
1. It states that the prisoner was sentenced to be imprisoned for a period of six months upon his conviction for an assault and battery committed by him, and in pursuance thereof was, by said court, committed to the custody of the sheriff and is now undergoing said punishment.
The statute in express terms refuses the application in cases "when persons are committed or detained by virtue of the final order, judgment, or decree of a competent tribunal of civil or criminal jurisdiction." The Code, sec. 1624, par. 2.
2. The petition fails to allege "that the legality of the imprisonment or restraint has not been already adjudged upon a prior writ of habeascorpus, to the knowledge or belief of the applicant," as required by sec. 1627, par. 4.
As an application for the writ of certiorari it must also be denied. Aside from the fact that no explanation is given of the failure to bring up the case by appeal when judgment was pronounced, we are clearly of opinion that the case made in the petition has no merits and is entirely unsupported in the rulings to which we have been referred. Ex parte Lange, 18 Wall., 163, and S. v. Warren, 92 N.C. 825.
(589) In the latter case judgment of imprisonment was rendered at one term, and after partial confinement the prisoner was called into court, and, as we interpret the record, the residue of the punishment remitted on certain terms, accepted and carried into effect by him. At the succeeding term a new sentence of imprisonment was pronounced, as if none had been before, ignoring both that which had been suffered and the fine that had been imposed and paid. This, it was decided, was in excess of judicial authority and not warranted by law. But we said that in thus holding we did not question "the right of the court during a term to correct, modify, or recall an unexecuted judgment in a criminal or in a civil case."
Here an imprisonment was adjudged for one year, or rather for twelve months, when, after eight days' confinement, near the close of the term, he was brought into court and a part of the term of imprisonment remitted — that is, for the intervening space between that and the ensuing term, when he was required to enter into bond (recognized, we suppose to be intended) to keep the peace meanwhile, and to make his appearance at the following term to undergo the residue of his sentence.
It would be very extraordinary if this form of mitigating a punishment during the sitting in which it was imposed was to be denied the court, and thus the sentence become irrevocable. Cannot the judge remit part or even all of a fine? If so, is his authority to reduce the term of confinement to be denied? *Page 497
It is not important what words are used to describe the judicial act, and whether, as called in the petition, it is the substitution of a new, in place of a previous judgment, the legal effect of what was done is aremission of part of the term of imprisonment, and nothing more. It may be, and such is the inclination of our opinion, that the confinement undergone should, by that period, shorten the duration of the six months' imprisonment or, in other words, be counted as part of it. The application for both writs must be denied.
Denied.
Cited: S. v. Manly, 95 N.C. 663; S. v. Stevens, 146 N.C. 681; MarlerCo. v. Clothing Co., 150 N.C. 522; S. v. Butner, 185 N.C. 734; S. v.Godwin, 210 N.C. 449.
(590)