State v. . Burnette
91 S.E. 364
N.C.
1917
Check Treatment
Waleer, J\,

after stating the case: The Legislature, by Public Laws 1907, ch. 180, created and established the criminal court of the county of Pasquotank, presided over by a trial justice, and gave it jurisdiction of criminal cases therein specified, the offenses charged against the defendant being of the prescribed class. When the defendant, upon his conviction in that court of unlawfully importing spirituous liquor into this State, and of having in his possession for sale more than one gallon of such liquor, consented to waive his right of appeal and also consented to a suspension of the judgments upon the terms and conditions stated therein, he was bound by his consent thus given, and the proceedings up to this stage of the case were regular and valid and according to established precedents. S. v. Crook, 115 N. C., at p. 760; S. v. Everitt, 164 N. C., 399; S. v. Hilton, 151 N. C., 687; S. v. Tripp, 168 N. C., 150. The matter is so fully considered in those cases that we deem it useless to attempt any further discussion of it. Defendant did not question the power of the court to suspend the judgments in the criminal prosecutions upon the terms imposed, but when he was brought before the justice of the criminal court for the purpose- of enforcing the suspended judgments, he sued out a writ of habeas corpus and attacked the validity of the sentence up>on the ground that there was, in law, no real investigation of the question as to whether the defendant had violated the terms of the suspension. If those proceedings were merely irregular or erroneous, they cannot be assailed collaterally by the writ of habeas corpus, and in order to do so defendant must show that they are abso-Iutely void and of no effect in law. Ex Parte McCown, 189 N. C., 95. It was there said: “We cannot decide whether there was any merely erroneous ruling of the court or any irregularities in resp>ect to judgment and procedure, as the writ of habeas corpus can never be made to perform the office of a writ of error or of an appeal. We are confined in our investigation to the question of jurisdiction or power of the judge to proceed as he did, and cannot otherwise pass upon the merits of the controversy. There must have been a want of jurisdiction over the *737 person or the cause or some other matter rendering the proceeding void, as this is the only ground of collateral attack. The law in this respect has been definitely settled, we believe, by all the courts.” Ex Parte Terry, 128 U. S. 289; Ex Parte Savin, 131 U. S., 267; Eapalje on Con-tempts, sec. 155. The Court held in Ex Parte Reed, 160 U. S., 13, that a writ of habeas corpus cannot be made to perform the functions of a writ of error, and “to warrant the discharge of the petitioner the judgment under which, he is held must be not only erroneous, but absolutely void.” In this case, therefore, the range of our inquiry is narrowed to the question of jurisdiction and the legal validity of the sentence in other respects. If the proceedings were either irregular or erroneous, the remedy is not by habeas corpus, and if they do not appear plainly on their face to be void, we should presume that they are valid until the contrary is shown, as the principle is that “Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the ordinary rule is omnia prcesumunter, etc.: everything is presumed to be rightly and duly performed until the contrary is shown.” Broom’s Legal Maxims, 909.

But while this is the general rule, we must inquire as to the jurisdiction of the court to proceed in the cause, and in doing so here we may properly start from the suspension of the judgment, as there is nothing-in controversy back of it. A careful perusal of the statute creating the criminal court of Pasquotank County leads us to the conclusion that the Legislature never intended that important proceedings such as the one under review in this case should be conducted by the trial justice (who is merely its presiding officer) except in open court, while the court is regularly sitting for the transaction of its business, and the order for the appearance of the- defendant at stated intervals, under the suspended judgment, and his showing that he had obeyed the law as to the possession and transportation of liquor was intended to require his appearance in open court; and it was further the purpose that the /investigation should be publicly conducted there, and the pro'ceeding before the trial justice acting privately in his office was n’ot warranted by the law and was of no effect. It was not without some reluctance that the practice of- suspended judgments upon certain conditions was sanctioned, and it was only done because of its being beneficial to the prisoner, and further because his rights may be properly safeguarded. The proceedings to enforce suspended judgments should, therefore, be had in open court, where he will have fair and reasonable opportunity, with the aid of-counsel, if he desires it, to show that he has not violated the terms of the suspension, and where his other rights may be preserved by a public *738 bearing. Tbe trial jutice does not sit as a committing magistrate to bind tbe prisoner over to court, but as tbe presiding officer of tbe court regularly organized as provided by tbe statute. He is but an integral part of tbe court, and in bis individual person does not embody its corporate authority. Tbe court must act as a court, and not merely tbe individual who is appointed by law to preside over it. Tbe defendant was entitled to a public bearing in tbe court, and this be has not bad. There was intimation substantially to this effect in S. v. Tripp, 168 N. C., at pp. 152, 153, where it was said: “Tbe power of tbe court, having jurisdiction, to suspend judgment oil conviction in a criminal case for determinate periods and for a reasonable length of time has been recognized and upheld in several decisions of our Court, as in S. v. Everitt, 164 N. C., 399; S. v. Hilton, 151 N. C., 687; S. v. Crook, 115 N. C. pp. 760, etc.; and we see no good reason why it should not be intrusted to the sound discretion of these municipal courts. It may be well to note that while it has been sanctioned in this State to a somewhat greater extent than it existed at common law, there has been decided intimation given in some of tbe cases that tbe practice should not be hastily enlarged, as it may be susceptible of great abuse to tbe injury of tbe citizen. Thus, in Hiltoris case tbe Court said: Un this State, as shown in Crook’s case, supra, tbe power to suspend judgment and later impose sentence has been somewhat extended in its scope, so as to allow a suspension of judgment on payment of costs, or other reasonable condition, or continuing tbe prayer for judgment from term to term to afford defendant opportunity to pay tbe cost or make some compensation to tbe party injured, to be considered in tbe final sentence, or requiring him to' appear from term to term, and for a reasonable period of time, and offer testimony to show good faith in some promise of reformation or continued obedience to tbe law. These latter instances of this method of procedure seem to be innovations upon the exercise of tbe power to suspend judgment as it existed at common law; and while they are well established with us by usage, the practice should not be readily or hastily enlarged or extended'to occasions which might result in unusual punishment or unsual methods of administering tbe criminal law.” While the proceedings are not valid, this does not necessarily entitle tbe petitioner to an absolute discharge; as tbe court may bold him to bail in order that he may answer', in a proper way, tbe allegation that he has violated his parole or the conditions of bis release. It does not appear that be reported to the court at each of the times apjoointed for his appearance, and showed that be bad complied with tbe conditions of the suspension of judgment. We, therefore, direct that be give bond in tbe sum of $100 for his appearance before the criminal court of Pasquotank County at a time to be fixed by that court for tbe investigation of the *739 matter, wlien be may have the benefit of counsel, if desired, and a reasonable opportunity to be beard in bis defense, and so that then and there the case may further proceed agreeably to -the forms and requirements of the law. If the defendant does not furnish bail as herein required, tíie criminal court may issue a warrant or capias to bring him before the court for the purpose of the investigation, giving him reasonable opportunity to be heard by counsel, if desired, and otherwise respecting his constitutional rights.

An appeal does not lie from a judgment or order in a habeas corpus proceeding like this one, blit the Attorney-General very properly agreed to waive this irregularity and to treat the appeal as it were a formal return to a writ of certiorari which had regularly been issued from this Court, upon application therefor by the petitioner. And we have so dealt with it. This course was taken and approved by us in Ex Parte McCown, 139 N. C., 95. See, also, In re Holley, 154 N. C., 163; S. v. Dunn, 159 N. C., 470. As held in the case last cited, we cannot review the evidence or other matters in a criminal case in habeas corpus proceedings, blit only the jurisdiction of the court and the validity of the judgment which is attacked, and we have not attempted to do so.

There was error in the ruling of the judge, and the case will be remanded with directions to proceed in the original case as herein indicated. The State will recover costs in this Court, to be taxed by the clerk, against defendant and his sureties.

Modified.