The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-11-15
BACK TO W0RKH0USE
Habeas Corpus Failed to
Work This Time.
Woman Of Durham Before Justice Walker
Interesting legal Pon:.--appsa! to
Full Court Probable.

arom the Durham county work-house
upon a writ of habeas corpus. So she
had to go back to don the stripes, unless
she makes a successful appeal to the full
court.
The woman keeps a house OF ill fame
III Durham, and was indicted upon that
charge at the September, 1900. term of
Durham Superior court, Judge Hole pre-
siding. She pleaded guilty end was not
represented by counsel. The judge SEN
fenced her to serve twelve months in
the county work-house, the sentence to
begin November 1St, 1900, 50 as to give
her time to dispose of her property 1t
then appears that the clerk of the court
was told by the judge that If she left
town he need not commit her to the
work-house. The court told her to go,
and she left the court room and re-
manned III Durham thirty days. trying to
sell house she owned. AMI then quit
the town.
Some ten days ago, after an absence
OF about three years, Mamie House re-
appeared In Durham, and proceeded to
run not only her old house, bat an
other one. These houses were SO dis
orderly that citizens complained of them,
and the clerk Of the court issued a
capies under the original order of the
court, and committed her to the work
house.
That was last Saturday. The House
woman employed counsel and determined
to ask for discharge upon a writ of
habeas corpus. Yesterday was the time
set for the hearing, before Judge Walker
in chambers at the Supreme Court. at
oil 90 III.
custody OF the keeper of the Durham
county workhouse, J. G. Ferguson and
Deputy Sheriff Cults. Her husband was
with her, also. Mr.. Howard A.
Fcushee, of the firm of Man
ming Foushee, appeared for her, and
Judge r. w. Winston, of the firm of
Winston & Bryant, was present for the
State and citizens Of East Durham.
Mr.. Foushee read the petition, in which
1t was set out that the defendant was
unlawfully detained under a judgment
which was void because the same was
conditional and also because she was SEN
fenced to one year In the work house,
the sentence to begin November 1st, 1900,
and that the time having past she could
not be re-sentenced. 1t was also urged
in the petition that the clerk of Durham
Superior court could not issue the capias
during vacation, and that the commit
nent papers were irregular.
Mr.. Foushee contended that the iudg-
nent had expired on October 31st, 1901
that the defendant could not now be
imprisoned on the old charge, and that
the judgment meant that she was to be
banished for twelve months. Otherwise
a bond or recognizance would have been
Df 10 4
cases found in our reports. He also ar
gued that the clerk of the court had ne
authority to commit the defendant to the
work house, that this could only be done
on notice Of the solicitor at a criminai
term of Superior court.
Judge Winston in reply cited State
against Hatley, 10th n. c., p. 522. in
which the court decided that the clerk
could issue capias against the defendant
during vacation. The facts in this case
of Mamie House disclosed, said he, that
she pleaded guilty at the Septemb, r
term. 1900 of Durham Superior court,
to the charge of keeping a house of i'll
fame. and was sentenced TO twelve
months on the roads, the sentence to be-
gin November LIST. 1900, and further that
she left Durham county in October, 1900,
October, 1903, when she returned and set
up her nefarious business again. The
citizens had by this time become thor
oughly aroused, as Mamie House had
twice before then pleaded guilty and
been let off by the clemency of the
court.
Upon these facts Judge Winston cited
State against Cockerham, I'd Iredell 20i,
to the effect that the judgment was not
conditional nor was it decree OF ban.
ishment. He also cited an opinion by
Justice CASTOR to the effect that the
time of the sentence is no part of the
sentence itself. Judge winston aisO
made the point that the writ of habeas
corpus was not proper remedy as the de-
PENDANT was In custody under the final
Judgment OF a court of competent jurs-
diction, citing II n. c. 607 in re Scheack.
Mr.. Foushee called attention TO the
case mentioned in the newspapers IL
which during the last administration,
prisoner was kept in the penitentiary two
years beyond his term and died, and his
administrator sued and recovered $500
for his services during those two years.
Judge Walker, after giving close atten-
tion 10 the case for nearly two hours,
adjudged as follows:
This is an application to be discharged
from the custody of the keeper of the
wcrk-house of Durham county, where the
petitioner is imprisoned under a iudg
ment of the Superior court Of Durham
county. as appears in the papers.
THE application for the discharge was
made upon the return to a writ of habeas
corpus previously issued By me.
Nov. after hearing the evidence and
the argument OF counsel and after due
consideration of the same: II is adiudged
that the petitioner is not entitled to a
discharge and she is accordingly re-
I.anded.
Judge Walker said that if the prisoner
wanted to appeal to the full court, he
had no doubt the court would advance
the case SO that II could be heard as
soon as the record was ready.
So the woman can appeal to the full
court Mr.. Foushee had not decided
when he left as to what he would do.
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