North Carolina General Statutes Chapter 17 Habeas Corpus

Article 1 - Constitutional Provisions.

N.C. Gen. Stat. § 17-1. Remedy without delay for restraint of liberty
Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful;...
N.C. Gen. Stat. § 17-2. Habeas corpus not to be suspended
The privileges of the writ of habeas corpus shall not be suspended. (Const., art. 1, s. 21; Rev., s. 1820; C.S., s. 2204.)

Article 2 - Application.

N.C. Gen. Stat. § 17-3. Who may prosecute writ
Every person imprisoned or restrained of his liberty within this State, for any criminal or supposed criminal matter, or on any pretense whatsoever, except...
N.C. Gen. Stat. § 17-4. When application denied
Application to prosecute the writ shall be denied in the following cases: (1) Where the persons are committed or detained by virtue of process...
N.C. Gen. Stat. § 17-5. By whom application is made
Application for the writ may be made either by the party for whose relief it is intended or by any person in his behalf....
N.C. Gen. Stat. § 17-6. To judge of appellate division or superior court in writing
Application for the writ shall be made in writing, signed by the applicant - (1) To any one of the justices or judges of...
N.C. Gen. Stat. § 17-7. Contents of application
The application must state, in substance, as follows: (1) That the party, in whose behalf the writ is applied for, is imprisoned or restrained...
N.C. Gen. Stat. § 17-8. Issuance of writ without application
When the appellate division or superior court division, or any judge of either division, has evidence from any judicial proceeding before such court or...

Article 3 - Writ.

N.C. Gen. Stat. § 17-9. Writ granted without delay
Any court or judge empowered to grant the writ, to whom such applications may be presented, shall grant the writ without delay, unless it...
N.C. Gen. Stat. § 17-10. Penalty for refusal to grant
If any judge authorized by this Chapter to grant writs of habeas corpus refuses to grant such writ when legally applied for, every such...
N.C. Gen. Stat. § 17-11. Sufficiency of writ; defects of form immaterial
No writ of habeas corpus shall be disobeyed on account of any defect of form. It shall be sufficient - (1) If the person...
N.C. Gen. Stat. § 17-12. Service of writ
The writ of habeas corpus may be served by any qualified elector of this State thereto authorized by the court or judge allowing the...

Article 4 - Return.

N.C. Gen. Stat. § 17-13. When writ returnable
Writs of habeas corpus may be made returnable at a certain time, or forthwith, as the case may require. If the writ be returnable...
N.C. Gen. Stat. § 17-14. Contents of return; verification
The person or officer on whom the writ is served must make a return thereto in writing, and, except where such person is a...
N.C. Gen. Stat. § 17-15. Production of body if required
If the writ requires it, the officer or person on whom the same has been served shall also produce the body of the party...

Article 5 - Enforcement of Writ.

N.C. Gen. Stat. § 17-16. Attachment for failure to obey
If the person or officer on whom any writ of habeas corpus has been duly served refuses or neglects to obey the same, by...
N.C. Gen. Stat. § 17-17. Liability of judge refusing attachment
If any judge willfully refuses to grant the writ of attachment, as provided for in G.S. 17-16, he shall be liable to impeachment, and...
N.C. Gen. Stat. § 17-18. Attachment against sheriff to be directed to coroner; procedure
If a sheriff has neglected to return the writ agreeably to the command thereof, the attachment against him may be directed to the coroner...
N.C. Gen. Stat. § 17-19. Precept to bring up party detained
The court or judge by whom any such attachment may be issued may also at the same time, or afterwards, direct a precept to...
N.C. Gen. Stat. § 17-20. Liability of judge refusing precept
If any judge refuses to grant the precept provided for in G.S. 17-19, he shall be liable to impeachment, and moreover shall forfeit to...
N.C. Gen. Stat. § 17-21. Liability of judge conniving at insufficient return
If any judge grants the attachment, or the precept, and gives the officer or other person charged with the execution of the same verbal...
N.C. Gen. Stat. § 17-22. Power of county to aid service
In the execution of any such attachment, precept or writ, the sheriff, coroner, or other person to whom it may be directed, may call...
N.C. Gen. Stat. § 17-23. Obedience to order of discharge compelled
Obedience to a judgment or order for the discharge of a prisoner or person restrained of his liberty, pursuant to the provisions of this...
N.C. Gen. Stat. § 17-24. No civil liability for obedience
No officer or other person shall be liable to any civil action for obeying a judgment or order of discharge upon writ of habeas...
N.C. Gen. Stat. § 17-25. Recommittal after discharge; penalty
If any person shall knowingly again imprison or detain one who has been set at large upon any writ of habeas corpus, for the...
N.C. Gen. Stat. § 17-26. Disobedience to writ or refusing copy of process; penalty
If any person to whom a writ of habeas corpus is directed shall neglect or refuse to make due return thereto, or to bring...
N.C. Gen. Stat. § 17-27. Penalty for false return
If any person shall make a false return to a writ of habeas corpus , he shall be guilty of a Class 1 misdemeanor....
N.C. Gen. Stat. § 17-28. Penalty for concealing party entitled to writ
If anyone having in his custody, or under his power, any party who, by law, would be entitled to a writ of habeas corpus,...

Article 6 - Proceedings and Judgment.

N.C. Gen. Stat. § 17-29. Notice to interested parties
When it appears from the return to the writ that the party named therein is in custody on any process, or by reason of...
N.C. Gen. Stat. § 17-30. Notice to district attorney
When it appears from the return that such party is detained upon any criminal accusation, the court or judge may, if he thinks proper,...
N.C. Gen. Stat. § 17-31. Subpoenas to witnesses
Any party to a proceeding on a writ of habeas corpus may procure the attendance of witnesses at the hearing, by subpoena, to be...
N.C. Gen. Stat. § 17-32. Proceedings on return; facts examined; summary hearing of issues
The court or judge before whom the party is brought on a writ of habeas corpus shall, immediately after the return thereof, examine into...
N.C. Gen. Stat. § 17-33. When party discharged
If no legal cause is shown for such imprisonment or restraint, or for the continuance thereof, the court or judge shall discharge the party...
N.C. Gen. Stat. § 17-34. When party remanded
It is the duty of the court or judge forthwith to remand the party, if it appears that he is detained in custody, either...
N.C. Gen. Stat. § 17-35. When the party bailed or remanded
If it appears that the party has been legally committed for any criminal offense, or if it appears by the testimony offered with the...
N.C. Gen. Stat. § 17-36. Party held in execution not to be discharged
When a writ of habeas corpus cum causa issues and the sheriff or other officer to whom it is directed returns upon the same...
N.C. Gen. Stat. § 17-37. When party ill, cause determined in his absence
When, from the illness or infirmity of the person directed to be produced by a writ of habeas corpus, such person cannot, without danger,...
N.C. Gen. Stat. § 17-38. No second committal after discharge; penalty
No person who has been set at large upon any writ of habeas corpus shall be again imprisoned or detained for the same cause...

Article 7 - Habeas Corpus for Custody of Children in Certain Cases.

N.C. Gen. Stat. § 17-39 through 17-40. Repealed by Session Laws 1967, c. 1153, s. 1

Article 8 - Habeas Corpus Ad Testificandum.

N.C. Gen. Stat. § 17-41. Authority to issue the writ
Every court of record has power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court,...
N.C. Gen. Stat. § 17-42. Contents of application
The application for the writ shall be made by the party to the suit or proceeding in which the writ is required, or by...
N.C. Gen. Stat. § 17-43. Service of writ
The writ of habeas corpus to testify shall be served by the same person, and in like manner in all respects, and enforced by...
N.C. Gen. Stat. § 17-44. Applicant to pay expenses and give bond to return
The service of the writ shall not be complete, however, unless the applicant for the same tenders to the person in whose custody the...
N.C. Gen. Stat. § 17-45. Duty of officer to whom writ delivered or on whom served
It is the duty of the officer to whom the writ is delivered or upon whom it is served, whether such writ is directed...
N.C. Gen. Stat. § 17-46. Prisoner to be remanded
After having testified, the prisoner shall be remanded to the prison from which he was taken. (1868-9, c. 116, s. 43; Code, s. 1669;...

Last modified: March 23, 2014