The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-03-03
NO HABEAS CORPUS.
UtIey's Petition Heard and
Denied Yesterday.
Decision Rendered by Jus ices Walker and Cor.-
nor, of the Suprems COur,---U fywas
Here in Person.
Here in Person.

day morning by Sheriff w. II. Marsh, of
Cumberland county. With him came Mr..
Herbert Ludlow and Mrs. Ludlow, and
Judge T. H. Sutton, of Fayetteville.
Mr.. Ludlow is Utleys uncle.
Judge Sutton. with Col, John w.
Hinsdale. argued for habeas corpus be-
fore Justices Walker and Conner. and
N. S. Cinclair and Henry l.. Cook, Of
Fayetteville, with the Attorney General,
appeared for the State.
The decision of the judges was adj
verse to the prisoners petition, and was
written as follows by Judge Walker:
This is an application for bail under
writ Of habeas corpus previously is
sued upon the petition of the prisoner.
At the hearing l requested Justice Con-
nor to sit with me.
1T appears that the prisoner was in
dcted in the Superior Court Of Cumber-
land county for the murder of Theo. b
Hollingsworth, and that at the trial in
-- time he was convicted of muir
der in the second degree and upon the
said conviction the judgment was that
he be imprisoned for twenty years in
the States Prison. He appealed from
this judgment and perfected the appeal
and the same is now pending in the
Supreme Court and stands for hearing
when the seventh cases from the
Seventh Judicial District are called in
that Court
"The case was fully discussed before
us by counsel for the State and for the
prisoner and has received our lawful
consideration.
The habeas corpus -- providing
that it shall be the duty OF the judge
to whom application for bail is made
to remand the applicant. if it appear
that he is detained in custody by -
-- Of the final judgment-or decree of
any competent court of civil or criminal
jurisdiction or of any execution issued
upon such judgment-or decree, and the
counsel discussed before us the ques-
! ton, whether the petition was detained
by virtue of final judgment or whether
the judgment was treated by the APP
peal In this connection counsel referred
to the act of 1887, chapter 49, which
provides that in criminal cases an APP
peal to the Supreme Court shall not
have the effect of treating the Judgment
appealed from, but upon -- the
appeal as now required by law, there
shall be a stay of execution during the
pendency Of the appeal
'It was conceded by counsel for the
State. that Notwithstanding this act, he
had the right in the exercise of
--- discretion to bail the prisoner.
nd it may be that this concession was
properly made and that the act of 1887.
chapter 1871, was intended merely to pro-
vide for the immediate execution of
the sentence in case of affirmance
by the Supreme Court without the .ne-
cessity of having this judgment or de-
cision by that court certified to the court
! below and new ................ at the
next term, the title of the bill being
IAN act to save time and expense in
appeals in criminal cases" which might
perhaps give some support to that con-
struction, If it was intended by that act
that the judgment should not be wasted
for any purpose, we would not of course
! have any power to bail the prisoner, as
| express provision of the habeas corpus
act would forbid it.
But we do not deem it necessary to
decide this question or to expect any
opinion in regard to it, as if it be granted
that the judgment is so far wasted as to
permit us to exercise a sound discretion
| or if the Habeas Corpus Act applies only
| to cases where there has been no appeal,
we are Of the opinion that the petitioner
has not presented to us such facts as
under the we'll established principles
of law governing such cases, will enable
us to admit him to bail.
4. He stands convicted of a felony
second only to one that is capital and
has been sentenced to Imprisonment for
20 years in the State Prison.
"2. Because there is no written prece-
dent in this State which sustains the
petitioner in this application.
IS. Because the indscrimiatate right
of going at large upon giving bail, after
an appeal, would render the criminal
law dead letter and for thisfreason no
application for bail should be granted
after conviction and sentence of one of
the higher felonies unless some special
reasons or circumstances be shown to
the court for admitting the petitioner
to bail In felonies not capital, if we
admit the prisoner to take bail after
conviction under our law, we think it
should be exercised with great caution
anu Olily NlGll the pCSNAA''A 80
of the case render it right and proper.
"a. 1t does not appear that theprovis-
ion has ever made any application for
bail to the judge who tried the case
either at term or during vacation.
"In passing upon the application we
have treated it as if the prisoner had
been virtually acquitted Of the capital
felony and therefore it is not necessary
for US to look nto and examine the tes-
| timony which was introduced at the trial
I'VE place our decision upon the ground
that, if we have the right to pail IN the
exercise of sound discretion the pris-
oner has not brought his application
within the well recognized principle that
should govern us in such cases
| In order to induce us to exercise our
dissention in behalf of the pensioner Il
we have discretion, there must be
something more than mere petluon
showing conviction for the serious
crime of murder in the second degree
and the testimony at the trial as TO the
prisoners guilt or crime #
In the case before us we have not been