State v. . SchlichterState v. . Schlichter
- Reporters:
- , ,
- Before:
- Stacy
The State’s application for writ of certiorari tо bring up the record in this case for review was made and аllowed under Article IV, sec. 8, of the Constitution which empowers this Court, among other things, “to issue any remedial.writs necessary tо give it a general supervision and control over the рroceedings of the inferior courts.” The remedial aрpropriateness of the writ is established by the authorities on the subject. S. v. Swepson, 83 N. C., 585, and cases there cited.
’ The question of law presented by the recоrd arises out of the following fact situation:
1. At the August Term, 1925, Halifax Superior Court, the defendants, A. B. Schilchter and O. M. Schlichter, prеsident and cashier, respectively, of the Bank of Hollister, were convicted of violations of the banking act, in that as officers of said bank, they received or permitted an employee to receive deposits therein with knowledge of the fact that, by reason of the hank’s insolvеncy, such deposits then being received were taken аt the expense or certain peril of the depоsitors presently making them. S. v. Hightower, 187 N. C., 300.
2. Judge Albion Dunn, who presided, after finding that thе defendants had paid $12,000 to the receivers of the defunct bank, upon recommendation of the solicitor, adjudgеd “that the defendant, A. B. Schlichter, be confined in the State’s prison for a term of not less than three years and not morе than five years, and that the defendant, O. M. Schlichter, be confined in the State’s prison for a term of not less than two yeаrs and not more than three years. Capias to issue at thе January Term, 1927, of Halifax Superior Court, if the judge holding the said сourt shall find as a fact that the said A. B. Schlichter and O. M. Schlichtеr have failed to pay to the receivers of the sаid bank the sum of eight thousand .eight hundred and thirty dollars, with interest from the 25th day of August, 1925.”
3. At the January Term, 1927, Halifax Superior Court, Judge Garland E. Midyettе, who presided, found as a fact that the defendants had failed to pay to the receivers of the Bank of Hollistеr the sum of $8,830, with interest from 25 August, 1925, whereupon the solicitor for the State moved that capias issue in accordancе with the judgment previously entered. The court continued this motion for capias until the January Term, 1928, being of opinion that thе judgment entered at the August Term, 1925, was void, because alternаtive, and that the case was then before the. court for disposition as if no previous judgment had been rendered.
It is manifest, we think, that Judge Midyette declined the solicitor’s motion for capias because of his opinion that no valid judgmеnt had *279 been entered in tbe case, and not as a mattеr of discretion nnder tbe judgment previously rendered, if indeed bе bad sucb discretion, wbicb it is unnecessary to decide, as tbе question is not before us.
But it was error to bold tbe judgment of Judge Dunn, entered at tbe August Term, 1925, void as a matter of law. It is not an altеrnative judgment witbin tbe principle announced in S. v. Perkins, 82 N. C., 682, nor a suspended judgment as was tbe case in S. v. Hardin, 183 N. C., 815, but ratber a suspended execution as discussed in S. v. McAfee, 189 N. C., 320, and S. v. Vickers, 184 N. C., 676, wbicb, strictly speaking, is no part of tbe judgment at all. S. v. Yates, 183 N. C., 753.
These questions bave been so thoroughly discussed in tbe recent cases of S. v. Edwards, 192 N. C., 321, S. v. Tripp, 168 N. C., 150, and S. v. Everitt, 164 N. C., 399, that we are content simply to refer to what was said in these late cases as authority for our present position. See, also, S. v. Shepherd, 187 N. C., 609; S. v. Phillips, 185 N. C., 620; S. v. Strange, 183 N. C., 775; S. v. Burnette, 173 N. C., 734; In re Hinson, 156 N. C., 250; S. v. Hilton, 151 N. C., 687; S. v. Whitt, 117 N. C., 804; S. v. Crook, 115 N. C., 763; S. v. Overton, 77 N. C., 485; Ex parte United States, 242 U. S., 27; Bernstein v. U. S., 254 Fed., 967; Notes, 39 L. R. A. (N. S.), 242, and 33 L. R. A. (N. S.), 112.
Error.