Summary
In State v. Cockerham, 24 N.C. 204, the defendant was (646) adjudged to be imprisoned two calendar months, "from and after the first of November next," to appear at which time he entered into a recognizance and forfeited it. At a subsequent Term, the solicitor moved that he be taken into custody and the sentence of the preceding Term carried into effect.
Summary of this case from State v. CardwellOpinion
June Term, 1842.
1. The time at which a sentence in a criminal case shall be carried into execution forms no part of the judgment of the court.
2. Therefore, where a defendant who had been convicted of an assault was sentenced to be imprisoned for two calendar months "from and after 1 November next," and did not go into prison according to the sentence, and at a subsequent term of the court it was directed that the sentence of two months imprisonment should be immediately executed: Held, that the court had the power to make such order.
APPEAL from an order of Bailey, J., made at Spring Term, 1842, of HAYWOOD.
Attorney-General for the State. (205)
No counsel for defendant.
At Fall Term, 1841, of HAYWOOD, which was on the first Monday after the fourth Monday of September, the defendant was convicted of an assault on one Thomas J. Cooper, and was sentenced to be imprisoned for two calendar months "from and after 1 November next"; that the defendant entered into recognizance to appear and go to prison at the time specified, but that, although he did not attempt to escape, yet in fact he was not imprisoned according to the said sentence; and now, at Spring Term, 1842, of the said court the solicitor for the State moved that the said defendant be taken into custody and that the sentence pronounced against him at the last term be forthwith carried into execution. The defendant's counsel objected on the ground that the time having elapsed at which the said sentence was to have been carried into execution, without any default on the defendant's part, the present court had no power to imprison him. This objection was overruled, and it was ordered by the court "that the said Jesse C. Cockerham be now taken into the custody of the sheriff and be imprisoned for the space of two months from the present time." From this order the defendant appealed to the Supreme Court.
The time at which a sentence shall be carried into execution forms no part of the judgment of the court. The judgment is the penalty of the law, as declared by the court, while the direction with respect to the time of carrying it into effect is in the nature of an award of execution. In this case the judgment was that the defendant be imprisoned two calendar months; and the words which follow in the record, "from and after 1 November next," direct the time of executing the judgment. The entry, indeed, would have been more formal had the judgment and the mandate for carrying it into effect been separate and distinct. But, however informal, it can be understood, in conformity to the law, as consisting of distinct parts, and, therefore, ought to be so understood. Upon the defendant appearing in court and his identity not being denied, and it being admitted that the sentence of the court had not been executed, it was proper to make the necessary order for carrying the sentence into execution. There is, therefore, no error in the order appealed from.
PER CURIAM. Affirmed.
Cited: S. v. McClure, 61 N.C. 492; S. v. Cardwell, 95 N.C. 646.
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