Summary
Con tempt — Punishment—-Habeas Corpus.
This was a rule served upon the respondents to show cause why they should not be punished for contempt, heard before Graves, J., at Spring Term, 1887, of Buncombe Superior Court.
One Charles W. Goodlake was charged in the affidavit of J. E. Conner, a citizen of Tennessee and Sheriff of Hamilton County therein, with having made in that State an assault upon J. E. Burlington, with intent to commit murder, a crime punishable there by law with confinement in the State prison for a term not less than two years, and as a fugitive from justice, found in the County of Buncombe, was arrested under a warrant issued by A. T. Summey, a Justice of the Peace therein, and on December 24, 1886, committed to the custody of the Sheriff' of Buncombe, to be held under the provisions of § 1165 of The Code. The prisoner, on the 6th day of January next ensuing, sued out a writ of habeas corpus, issued by Hon. James H. Merrimon, a Judge of the Superior Court, against the keeper of the common jail of Buncombe, wherein the prisoner was detained, requiring him immediately to produce his body and make return to the writ before Hon. A. C. Avery, Judge, at Morganton.
Upon the hearing, it was adjudged that the arrest and commitment were in accordance with law, and, as the agent commissioned by the Governor of Tennessee to demand and receive the prisoner for removal to that State was not present, that he be recommitted to the Sheriff, in whose custody he was, to await the action of the Governor of this State upon the requisition of the Governor of Tennessee, if made within the time limited by law. A second application for the writ of habeas corpus was presented to the same Judge on the 19th day of February, 1887, in which, among other necessary averments, it was alleged that the prisoner had been surrendered to the agent of Tennessee, by virtue of an order so directing the Sheriff from the Governor of this State, for the purpose of removal, after which he had been suffered by said agent to go at large, and had been re-arrested and held by said Sheriff without further lawful authority. The writ was returned before Hon. J. C. MacRae, Judge, at Henderson-ville, and he, overruling all the grounds upon which the claim to be discharged was based, recommitted the prisoner to the custody of the Sheriff, to be held under the orders before made.
Pending these proceedings, the said J. E. Conner was charged, upon the oath of the prisoner, with having committed perjury, in swearing out the warrant under which the original arrest was made, and he being carried before Charles W. Malone, another Justice of the Peace, for examination, on March 6, was discharged.
Again, for the third time, a similar writ was sued out upon a petition containing the required averments under section 1627, and among them, that the “illegality of the imprisonment in this behalf has not already been adjudicated upon by a prior writ of habeas corpus,” before Hon. J. F. Graves, J., then at Marshall, in.Madison county, returnable before himself instanter, directed to said J. E. Conner, who, at the time of making the affidavit, did not have the custody of the prisoner, and to whom the prisoner was not delivered until the next day, commanding the said Conner to bring the body of the prisoner before him at Marshall, with his return thereto The writ was awarded on March 6lh, and at once placed in the hands of M. A. Chandley, Sheriff of Madison County, for service. On the night of that day the prisoner was delivered to the agent, who, with several others accompanying him for the purpose of preventing an apprehended forcible attempt to rescue the prisoner, entered the cars at Asheville, and proceeded without interruption until the train reached the town of Marshall. There several persons, among them the Sheriff with the writ, attempted to enter the car where the prisoner was sitting by the side of one of the assistants, when the respondent Patterson forbade him, until he was told that the person was the Sheriff, and then made no resistance, and the Sheriff came in, and not finding the agent, Conner, read the wait in the hearing of the four assistants present, and demanded the body of said Goodlake, which, the Sheriff says in his return, was met with armed resistance. However, he subsequently found the agent in the apartment appropriated to the mails, and served the process on him, disregarding which mandate the agent proceeded on his wa3 and conveyed the prisoner out of the State.
Thereupon an attachment was awarded against the said Patterson and others, to-wit: W. H. Heaver, J. H. Croft and T. J. Howard, the Judge finding that they had the custody of the prisoner and were in contempt, by virtue of which the said Chandley, Sheriff, arrested the said Patterson and Heaver, who alone were accessible to service, and brought them before the Judge to answer therefor.
The said Patterson made answer to the charge under oath, and in substance (for the answer is too extended to be reported in detail) disclaimed any intent to disobey the mandate of the Court, or obstruct the Sheriff in his efforts to serve it, and stated that his presence with the agent was only to aid the agent in resisting any lavdess and forcible efforts that it was feared would be made to wrest the prisoner from his custody, and prevent his removal from the State; and that as soon as advised of the official character of the Sheriff, and the authority conferred upon him, no opposition of any kind was offered to its exercise, and that in all this he acted simply in the protection of the agent against lawless violence, if attempted, to obstruct him in carrying out the-order of the Governor of the State.
The Court refused the request made by respondents to have the matters of fact submitted to a jury. Respondents excepted.
The respondents offered to show, that the matters alleged in the petition for writ of habeas corpus had been theretofore adjudicated; that this writ ought not to have been issued. The Court held that the writ was issued upon the statements of the petition Respondents excepted.
Thereupon a large number of witnesses were orally examined pro and con.
After hearing all the evidence and the argument of counsel, the Court announced its findings of fact, and pronounced judgment.
The facts found are as follows:
That there is a sufficient statement in the petition filed by Charles W. Goodlake to authorize and compel the Court to issue the writ of habeas corpus.
That Charles W. Goodlake had been imprisoned in the common jail of Buncombe County charged, upon a warrant issued by one A T. Summey, a Justice of the Peace of said county, with having committed an assault with intent to kill, in the State of Tennessee, and under that charge was field by tfie Sheriff of said County of Buncombe.
That a writ of habeas corpus had been heretofore sued out on the petition of the said Goodlake, and heard before A. C. Avery, one of the Judges of the Superior Court of the State, in which it was alleged that said Goodlake was in the custody of the Sheriff of Buncombe County, and upon the hearing, Goodlake had been remanded, to await the requisition of the Governor of Tennessee.
Another writ had been applied for and granted but had not been served, and no further action was taken under it.
Another writ had been applied for by Goodlake, alleging that he was detained by the Sheriff of Buncombe County, which was heard before J. C. MacRae, one of the Judges of the Superior Court of this State, and upon the hearing of that writ Goodlake was again remanded to the custody of the Sheriff of Buncombe County.
The fact that these proceedings had been had was not known to me at the time the writ was issued. The petition on which I granted the writ alleged that the petitioner was in the custody of one J. E. Conner.
J. E. Conner, representing himself to be the agent of the State of Tennessee, on Saturday, the 5th day of March, 1887, demanded Goodlake from the Sheriff of the county, and Goodlake, having obtained a pistol, resisted, and refused to allow Conner then to take him. A warrant, issued by a Justice of the Peace of the County of Buncombe, charging Conner with perjury, in suing out the warrant on which Goodlake was arrested, was then and there served on Conner, and the next day he had a hearing before the Justice of the Peace and was discharged.
There had been on Saturday night some disturbances about the jail, and a brother of Goodlake being near the jail about midnight, there being some twenty or thirty persons near him, said, “ do not fear, Charlie,” and added, “we will tear the jail down, if you say so.”
The pistol was obtained from Charles W. Goodlake on Sunday.
One of the brothers of Goodlake tried to borrow a pistol.
There was some excitement in Asheville on Sunday evening about six o’clock. The Sheriff of Buncombe County again went to the jail to deliver Goodlake to Conner. Conner requested that the Sheriff of Buncombe County would deliver said Goodlake to him privately, and that the respondent A. C. Patterson should accompany him to the Tennessee line, to prevent a rescue, as he said.
Patterson is a Deputy of the Sheriff of Buncombe County, and the said Sheriff consented that he should accompany Conner, to assist him, to the Tennessee line.
The respondent W. H. Deaver was the Chief of the Pinion Detective Agency for Western Division of North Carolina, and Conner requested him to go with him to the Tennessee line, to prevent a rescue, as he said, and the Sheriff of Buncombe County also summoned him to assist in guarding Goodlake to the train and to the switch below the depot.
Conner and the Sheriff of Buncombe County and the respondents did have some apprehension that an attempt would be made to take Goodlake from the custody of Conner by force.
There was no real danger of such an attempt.
The respondents, at the request of Conner and Sheriff Worley, went to the jail and Goodlake was taken from the jail by the Sheriff of the County of Buncombe and placed in a covered vehicle, the respondents, with the Sheriff and some other deputies, got into the same vehicle and drove to a hotel near the railroad depot, and got out and went into the depot, and a few minutes later went into the first-class passenger car where Goodlake was formally delivered by Patterson, as Deputy Sheriff, to Conner, and at the request of the conductor, Conner, Goodlake, Patterson, Deaver, Croft and Howard went into the second-class passenger car, Good-lake being handcuffed.
When the train moved off, Conner, the respondents and T. J. Howard and T. D. Croft were in the second-class car without pistols upon their persons.
It was expected by Conner that an application for a writ of habeas corpus had been or would be made.
It was known to some of the deputies of Sheriff Worley who went to the depot, and to other parties, that a petition for a writ of habeas corpus had been sworn to in the jail Saturday night about midnight, but it was not communicated by any one to Patterson and Deaver. Conner, soon after leaving the railway station at Asheville, claimed to be sick, and left the second-class car and was not seen in the car again; Howard, Croft and the respondents did* remain in the second-class car with Goodlake in their custody.
When the railway train arrived at the station at Marshall, it first went on a side-track, where people do not usually get off, when the Sheriff of Madison County, with duplicate writs of habeas corpus issued by me, sought to enter the train. Pie was, at first, forbidden by the respondent Patterson, who did not know his official station, to enter, but as soon as he made his official character known, Patterson opened the door of the car and told him to come in. Conner was not then in that car. The Sheriff of Madison made known his business and exhibited his writs of habeas corpus. Pdie respondent Deaver read the writ aloud, and the respondent Patterson said, “ Read your writ, Sheriff, and that will tell you what to do.” He had experience as a Deputy Sheriff, and said it must be served on Conner, to whom it was directed, and the respondent Deaver contended the same way. One of counsel for petitioner Goodlake said, “Howard is Conner’s agent, and he is Conner,” and after the writ had been read in Ploward’s hearing, the Sheriff handed to him the duplicate, which he would not take, and the Sheriff then put the duplicate in the lap of Howard. About that time the train moved off, with the Sheriff and his deputies still on the train. Search was made through the train for Conner and he could not be found.
The Sheriff then returned into the second-class car and told each of the respondents and Croft and Howard that he .served the writ on each of them. The respondents replied, “ He is not in our custody.” The Sheriff responded, “ Good-lake is here in handcuffs. He is in somebody’s custody, and I serve this writ on each one of you.”
As the train moved on, the Sheriff of Madison County, with his assistants, continued the search for Conner, and finally 'he was found, disguised as a fireman in the mail car, covered over with mail bags, and the writ was served on him; and the Sheriff of Madison County handed to him the writ and petition on which it was issued, for him to read, expecting him to obey it. Conner took the writ and the petition and carried them off with him. This was in the State of North Carolina. The respondents were informed that the writ' had also been served on Conner, hut with this information they, with the said Croft, Howard and Conner, went on, and carried the said Goodlake beyond the limits of this State, into the State of Tennessee.
The defendants now swear that they had no control over the said Goodlake, and that it is beyond their power now to produce him before the Court; and I find as a fact that the said Charles W. Goodlake is now out of their control, and that they cannot produce him.
I further find that at the time.the writ of habeas corpus was served upon the respondents he was then in their custody.
I further find that the said respondents wilfully diregarded and disobeyed the said writ.
And I further find that the said respondents willfully assisted the said J. E. Conner in his attempt to evade the service of said writ.
It is considered by the Court, that when a petition for a writ of habeas corpus states matters of fact sufficient to authorize the Court to issue such writ, the Court cannot refuse to issue the writ, although facts subsequently developed may show that the statements in the petition are not true; and although one upon whom such writ is served may believe the writ was obtained upon a false statement in the petition, he cannot, for that reason, be excused for disobeying it.
It is further considered by the Court, that when a return is made and the body is not produced, except in case of the sickness of the person in whose behalf the petition is filed, the Court will not inquire into the matter as to whether the capture and detention is lawful or not.
It is further considered by this Court, that when upon the return and the proofs to support it, that in fact the respondents cannot produce the body, because it is beyond their power and control, the Court will not imprison until the body is produced, because the Court will not require an impossible thing to be done.
It is further considered by the Court, that where the writ of habeas corpus has been duly served upon the respondents, as in this case, and at the time of such service, the petitioner, as in this case, Charles W. Goodlake, was in the actual custody of these respondents, they cannot be heard to say that the petitioner Goodlake was in the custody of a superior officer, when said superior officer, as in this case, J. E. Conner, was hiding and disguising himself, to evade the service of the writ, and thereby excuse themselves.
It is further considered by the Court, that these respondents have willfully disobeyed the writ of habeas corpus served upon them, while the petitioner Goodlake was in their custody, and thereby were guilty of a gross contempt of Court, and cannot now purge themselves by saying they did not intend the necessary consequences of their own act, by now denying that they intended any contempt of Court.
It is therefore considered and adjudged, that the said respondents are in contempt of the Court; and it is ordered and adjudged that the said respondents, A. 0. Patterson and W. PI. Deaver, be each of them imprisoned in the common jail of the County of Buncombe for the term of sixty days, and that they be each amerced and fined the several sums of two thousand dollars. And. the said A. C. Patterson and W. PI. Deaver being now here before me, and the Sheriff of the said County of Buncombe being now here present, it is ordered that the said Sheriff do forthwith take into his custody the said A. C. Patterson and the said W. IP. Deaver and hold them in close confinement in the said common jail of Buncombe County until the end of the sixty clays’ imprisonment, and that he hold in person each one of them thereafter until he shall have paid the fine imposed on him.
It is further ordered, that the respondents pay the costs of this proceeding, to be taxed by the Clerk of the Superior Court of Buncombe County.”
To these findings of fact and the judgment thereon pronounced, the respondents excepted and appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
