No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he is first taken forthwith before a judge of any court having criminal jurisdiction in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel states that he or they desire to test the legality of his arrest, the judge of such court shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the state's attorney of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.
(1957, P.A. 362, S. 10; 1959, P.A. 28, S. 156.)
History: 1959 act deleted reference to trial justice.
Prior to 1960: Court of Common Pleas may, in its discretion, admit prisoner to bail pending appeal from its decision dismissing writ of habeas corpus. 100 C. 291. Demanding state is forum in which issue of violation of due process must be raised; argument re arrest must be confined to legalities. 151 C. 155. Indigent must be afforded means to assert his rights on such hearings. 157 C. 403. Cited. 159 C. 150. United States court will not ordinarily issue writ pending final determination of case in state courts. 160 U.S. 231. Cited. 171 C. 366; 186 C. 404; 188 C. 364; 190 C. 631; 193 C. 270; 196 C. 309; 218 C. 791.
Scope and limits of the hearing on habeas corpus discussed; in habeas corpus proceeding, plaintiff argued that his return to North Carolina would be in violation of his constitutional rights, particularly those relating to cruel and unusual punishment, excessive fines and right to counsel; held that, if his constitutional rights were violated, his remedy lies in an appeal from the decision of the North Carolina court. 21 CS 12.
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