Rutherford County NcArchives Court.....Henderson Adair, State V. 1873
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a February 12, 2012, 1:45 pm

Source: N C Reports
Written: 1873

State v. Henderson Adair

General statutes do not bind the sovereign, unless for that purpose the 
sovereign is expressly mentioned in them.

The act of 1868-69, chap. 116, sec. 37, was not intended to interfere with any 
right of the State to use condemned prisoners as witnesses whenever the 
Solicitor deemed it for the interest of the State so to do: Therefore held, to 
be error in the Court below to refuse a petition for a habeas corpus ad 
testificandum, to bring up a prisoner confined to jail under sentence of death 
for murder, on order that such prisoner might testify in a trial for felony 
then pending in said court.

Petition for a writ of habeas corpus ad testificandum, heard before Logan, J., 
at the Fall Term, 1872, of the Superior Court of Rutherford County.

Solicitor Bynum, for the State, presented the following petition to the court 
below, to wit:

"State of North Carolina
Rutherford County
Superior Court, Fall Term, 1872

State v. Henderson Adair, et al

"To the Honorable Geo. W. Logan, Judge of the 9th Judicial District sitting 
for Rutherford County, in said District:

"The petition of W. T. Bynum, Solicitor of said District, prosecuting in 
behalf of the State, showeth that one Henderson Adair is now confined in the 
jail of said county, on a charge of the murder of William H. Steadman, alias 
Lee, and others, all of said county.

"That one Martin Bainard is a material witness in behalf of the State, on the 
trial of said prisoner, without whose testimony he cannot safely try said 
action.

"That a bill of indictment against said Henderson Adair, is now pending before 
the Grand Jury of said county at the present term, and cannot be safely 
proceeded with without said testimony.

"That the said witness, Martin Bainard, is confined in the common jail of 
Henderson County, under sentence of death for murder.

"Wherefore, the petitioners asks your Honor to grant the State's writ of 
habeas corpus ad testificandum, commanding the sheriff of Henderson County to 
have the said Martin Bainard before the said Court instanter, to testify in 
behalf of the State in said criminal action as aforesaid.

W. P. Bynum, Solicitor
Sworn to before me this 1st October, 1872.
G. W. Logan, J. S. C."

The Court refused to grant the prayer of the petition, from which judgment the 
State appealed.

Attorney General Hargrove for the State
No counsel in this Court for the defendant

NC Supreme Court Justice Boyden, J. - We are satisfied that the act of 1868-69 
did not intend to interfere with the right of the State to use condemned 
prisoners as witnesses, whenever the prosecuting officer deemed it for the 
interest of the State to do so. (see court case for judge's full findings)

There was error in his Honor's ruling.
This will be certified.

Per Curiam
Judgment accordingly

Additional Comments:
In the Supreme Court January Term 1873

File at: http://files.usgwarchives.net/nc/rutherford/court/henderso2203gwl.txt

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