114 S.E. 168 | N.C. | 1922
This is an appeal from an order of Kerr, J., made at the March Term, 1922, in proceedings for a writ of habeas corpus, by which he ordered the defendant into the custody of the sheriff of Durham County to serve a sentence of twelve months on the public roads of said county, imposed by Horton, J., at the February Term, 1921, of the Superior Court.
It is clear that no appeal lies from such an order. The defendant should have applied to this Court for a writ of certiorari. S. v. Yates,
The judgment, as entered by Judge Horton, at February Term, 1921, of Durham County Superior Court, was as follows: "The defendant comes into open court and pleads guilty of receiving more than one quart (of liquor) within fifteen days. The court then orders that the defendant be sentenced to twelve months on the roads, with capias to issue at the request of the sheriff of Durham County." The judgment was actually entered on 5 March, 1921. On 22 February, 1922, the sheriff of Durham County applied to the clerk of the Superior Court of that county for a capias. The capias on which the defendant was arrested was issued by the clerk on 6 March, 1922. The defendant was arrested under this capias, and while in the custody of the sheriff, and before entering upon the service of his term, the writ ofhabeas corpus was sued out before Judge Kerr. The testimony taken upon the return of this writ is contained in the record. *678
It is evident, we think, that the form of the judgment as rendered by Judge Horton was adopted at the suggestion of, and for the benefit of the defendant. It is in no sense a suspended judgment. S. v. Burnette,
It is stated in 18 Corpus Juris that, as a rule, the duration of imprisonment must be stated clearly and definitely, although it has been held that when the period of imprisonment is definitely fixed by statute, such period need not be specified in the sentence. As a general rule, the time for imprisonment to commence, or to be inflicted, is no part of the judgment or sentence proper, and according to the weight of authority, in the absence of a statute requiring it, the time when the imprisonment is to begin or end need not be specified in the sentence, it being sufficient to state merely its duration. 16 R.C.L., p. 1304 (sec. 3079); Gaskin's case,supra. But we very recently passed upon the question, when it was said that the time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the same at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it shall begin to be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should as a rule, be strictly executed. But the order of the court, with reference to the time when this shall be done, is not so material. Expiration of the time without imprisonment is in no sense an execution of the sentence. S. v. Yates,
It can hardly be questioned that when the court was informed that its judgment had not been enforced, it was not only authorized, but it was its duty to provide for the commitment of the convict in execution of the sentence.
In December, 1918, the Circuit Court of Appeals of the United States, sitting at Richmond, in Burstein v. U.S., 254 Fed., 955, had before it a similar question, and the Court declared that the time when a sentence of imprisonment shall commence, although specified in the same entry, is properly no part of the sentence, and may be changed by the court at a subsequent term, if for any reason execution of the sentence has been delayed. In our case, Judge Kerr directed that the defendant be committed to the custody of the sheriff that he may serve the sentence of twelve months imposed by Judge Horton. This is more than an order remanding him. It requires, also, the service of the twelve months upon the roads. In this point of view, the Burnstein case, supra, is also material. In that case, the Court further held, that although the order *680 so recites, we think it inaccurate to say that he was resentenced, since the court made no change in the original sentence, but merely changed the previous direction as to the time when imprisonment should begin.
In that case it was also held, in accordance with the authorities, that such an order (that is, an order fixing the time at which the sentence is to begin) is not a judicial, but merely a ministerial act, citing 12 Cyc., 784; 16 C. J., 1304; Holden v. Minn,
It is manifest, then, we think, that if the judge had no authority to leave the time at which the capias should be issued to the discretion of the sheriff, that is no part of the judgment, and so under the circumstances of this case it may be enforced at any time for the full term upon an order of the court, as the defendant was in court, or upon the issuing of a capias by the clerk of the Superior Court under the direction of the judge, if he was not in court.
It would be a mockery of justice if the defendant could, upon such slight departure from correct procedure, escape the lawful punishment for his crime.
Appeal dismissed.