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GINSENG.

Sec. 375 (3714). Ginseng; digging, between April and September. If any person dig ginseng, except on his own premises, or for the purpose of replanting the same, between the first day of April and the first day of September, he shall forfeit and pay the sum of ten dollars.

Sec. 376 (3502). Ginseng growing on land of another.

All persons shall be allowed to dig ginseng at any time of the year for the purpose of replanting the same. If any person shall take and carry away, or shall aid in taking or carrying away, any ginseng growing upon the lands of another person, with intent to steal the same, he shall be guilty of a felony, and shall be imprisoned not less than two years nor more than five years, in the discretion of the court: Provided, that such ginseng, at the time the same be so taken shall be in beds and the land upon which such beds are located shall be surrounded by a lawful fence.

1905, c. 211.

GLANDERS OR FARCY.

See also SELLING DISEASED ANIMALS.

Sec. 377 (3296). Contagious diseases; having glanders or farcy to be killed.

If the owner of any animal having the glanders or farcy shall omit or refuse, upon discovery or knowledge of its condition, to deprive the same of life at once he shall be guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days.

Code, s. 2489; 1891, c. 65; 1881, c. 368, s. 8.

GRAVES.

Sec. 378 (3672). Graves, disturbing.

If any person shall, without due process of law, or the consent of the surviving husband or wife, or the next of kin of the deceased, and of the person having the control of such grave, open any grave for the purpose of taking therefrom any such dead body, or any part thereof buried therein, or anything interred therewith, he

shall be guilty of a felony, and upon conviction thereof shall be fined or imprisoned, or both, at the discretion of the court.

1885, c. 90.

On the trial of several defendants charged with an offense, upon an intimation from the court as to the law and an indication from the counsel for the defendants that they would not argue the case to the jury except as to the guilt of two of them, the solicitor stated that he would consent to a verdict of not guilty as to such two defendants. The defendants' counsel, after consultation, then stated that they would argue the case as to the others, whereupon the solicitor withdrew his proposition as to the verdict concerning the two defendants: Held, that it was proper for the judge to refuse to direct a verdict of not guilty as to the two defendants. McLean, 121-589.

The opening of a grave for the purpose of removing anything interred therein is conclusive as to the intent with which the act was done, and the intent to do the act is the criminal intent which imparts to it the character of an offense. McLean, 121-589.

Where an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which imparts to it the character of an offense. McLean, 121-589.

At a meeting of the commissioners of a town, at which the mayor presided, a report of the cemetery committee was adopted, recommending that, unless parties who had taken lots in the town cemetery and had not paid for them should pay the amount due within sixty days on notice, the bodies buried in such lots should be removed to the free part of the cemetery. Subsequently, in reply to a question of one of the commissioners as to the legal right to remove the bodies, the mayor said: "The way is open; go ahead and remove them": Held, that the mayor was individually guilty of counseling, procuring and commanding an act within the meaning of section 977 of The Code, the committing of which afterwards was a felony. McLean, 121-589.

GRAVEYARDS.

Sec. 379 (3681). Moving enclosures of graveyards.

If any person shall unlawfully take away any stone, brick, iron or anything that encloses private graveyards, he shall be guilty of a misdemeanor, and on conviction, shall be fined not more than ten dollars or imprisoned not more than thirty days.

1889, c. 130.

HABEAS CORPUS.
I.

GENERALLY.

Sec. 380 (1819). Cause of restraint of liberty inquired into.

Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful; and such remedy ought not to be denied or delayed.

Const., Art. I, s. 18.

Sec. 381 (1820). Habeas corpus shall not be suspended.

The privileges of the writ of habeas corpus shall not be suspended.

Const., Art. I, s. 21.

II. THE APPLICATION.

Sec. 382 (1821). 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 in cases specified in the succeeding section, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.

Code, s. 1623; 1868-9, c. 116, s. 1.

DEATH OF DEFENDANT PENDING APPEAL, ACTION ABATES.-Where a habeas corpus proceeding is instituted by a father to secure the custody of his infant children in the possession of and detained by their grandfather, and the grandfather dies pending appeal, the action abates and can not be revived against the personal representative, since a personal representative, as such, is not chargeable with the possession and detention of children. Brown v. Rainor, 108-204.

In such a case each party is liable for his own costs. Ib.

HABEAS CORPUS TO BRING DEFENDANT TO TRIAL. On indictment for burglary with intent to commit murder, defendant consented to a mistrial, and pleaded guilty of larceny," and judgment was then pronounced sentencing him to the penitentiary: Held, that the judgment was erroneous, since his confession of being guilty of the larceny was not a confession of the crime charged against him; but that he was not entitled to be discharged, but the original indictment being still pending against him, he could be taken from the penitentiary by habeas corpus and held to answer the original charge. Queen, 91-660.

FINDING BILL FOR MURDER NOT CONCLUSIVE AS TO PROBABLE CAUSE.—The finding of a true bill for murder does not deprive the court of the power to investigate the evidence and admit the prisoner to bail, and it is reversible error for the court to refuse to hear the evidence on the ground that the finding of the bill was conclusive of the fact that there was probable cause. Merrimon, C. J., dissenting. Herndon, 107-934.

CERTIORARI. As the statute gives no appeal in such cases, a writ of certiorari will be granted. Herndon, 107-934.

PROCEDENDO TO ANY JUDGE.-If, upon such certiorari, the supreme court reverses and sets aside the judgment of the court below and the proceedings are remanded, no procedendo issues to any particular judge, but the petitioner can exercise his statutory right to apply, de novo, to any judge authorized to grant the writ of habeas corpus. Herndon, 107-934.

WITNESS CONVICTED OF MURDER.-One who has been convicted of murder and is under sentence of death is a competent witness, and the solicitor for the state is entitled to a habeas corpus to obtain his testimony before the grand jury. Harris, ex parte, 73-65.

BURDEN ON THE PETITIONER.-Where, upon the return, it appeared that the petitioners were in custody on a mittimus, regular in every way, from a justice of the peace, for failure to give bond for their appearance at next term of the

superior court, to answer a criminal charge of which the court had jurisdiction, the detention, nothing else appearing, was clearly legal, and the burden was on the petitioners to show wherein it was illegal, and not upon the state to show that they were lawfully in custody. Jones, 113-669.

PRESUMPTION OF INNOCENCE. The presumption of innocence applies only on a trial, and does not avail to furnish a presumption that the detention of a party on regular process, when the committing officer has jurisdiction, is illegal. Jones, 113-669.

PRISONER MAY BE DISCHARGED AFTER BEING BOUND-Where habeas corpus is taken after being committed by a magistrate, the judge, if no evidence at all is shown, may hear the case de novo, and may discharge the prisoner. Jones, 113-672.

If the judge, in such case, finds that the facts do not constitute a crime, he may discharge the defendant. Jones, 113-672.

WHEN APPLICATION DENIED.-An application for habeas corpus which states that the prisoner was sentenced to a term of imprisonment on his conviction for a certain offense, and is now undergoing said punishment, must be denied. State v. Brittain, 92-587.

Where the petition fails to state that the legality of the imprisonment has not already been adjudged upon a prior writ, it will be refused. Ib.

Sec. 383 (1822). When 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 issued by a court of the United States, or a judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such courts.

2. Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.

3. Where any person has willfully neglected, for the space of two whole terms after his imprisonment, to apply for the writ to the superior court of the county in which he may be imprisoned, such person shall not have a habeas corpus in vacation time for his enlargement.

4. Where no probable ground for relief is shown in the application.

Code, s. 1624; 1868-9, c. 116, s 2.

Note. See s. 1848.

Sec. 384 (1823). By whom 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. Code, s. 1625; 1868-9, c. 116, s. 3.

Sec. 385 (1824). How and to whom.

Application for the writ shall be made in writing, signed by the applicant

1. To any one of the justices of the supreme court.

2. To any one of the superior court judges, either at term time or in vacation.

Code, s. 1626; 1868-9, c. 116, s. 4.

Sec. 386 (1825). What it must state.

The application must state in substance, as follows:

1. That the party, in whose behalf the writ is applied for, is imprisoned or restrained of his liberty, the place where, and the officer or person by whom he is imprisoned or restrained, naming both parties, if their names are known, or describing them if they are not known.

2. The cause or pretense of such imprisonment or restraint, according to the knowledge or belief of the applicant.

3. If the imprisonment is by virtue of any warrant or other process, a copy thereof shall be annexed, or it shall be made to appear that a copy thereof has been demanded and refused, or that for some sufficient reason a demand for such copy could not be made.

4. If the imprisonment or restraint be alleged to be illegal, the application must state in what the alleged illegality consists; and that the legality of the imprisonment or restraint has not been already adjudged, upon a prior writ of habeas corpus, to the knowledge or belief of the applicant.

5. The facts set forth in the application must be verified by the oath of the applicant, or by that of some other credible witness, which oath may be administered by any person authorized by law to take affidavits.

Code, s. 1627; 1868-9, c 116, s. 5.

Sec. 387 (1826). When issued without.

Whenever the supreme or superior court, or any judge of either, shall have evidence from any judicial proceeding before such court or judge, that any person within this state is illegally imprisoned or restrained of his liberty, it shall be the duty of said court or judge to issue a writ of habeas corpus for his relief, although no application be made for such writ.

Code, s. 1632; 1868-9, c. 116, s. 10.

III. THE WRIT.

Sec. 388 (1827). When granted.

Any court or judge empowered to grant the writ, to whom such applications may be presented, shall grant the writ without delay,'

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