State v. Cockerham, 24 N.C. 204, 2 Ired. 204 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 204, 2 Ired. 204

STATE vs. JESSE C. COCKERHAM.

The time at which a sentence in a criminal case shall be earied into ex"-ecution, forms no part of the judgment of the court.

Therefore where a defendant, who had been convicted of an assault, was sentenced to be imprisoned for two calendar months “from and after the first day of 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 for two months imprisonment should be immediately executed. Held that the court had the power to make such order.

This was an appeal from an order of his Honor Judge Bailey, made at the Spring Term, 1842, of Hay wood Supe - rior Court of Law. It appeared that at the Fall Term, 1841, of Haywood Superior Court, 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 the first day of 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.

Attorney General for the State.

No counsel in this Court for the defendant.

Gaston, J.

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 carryiug it into eifect, 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 the 1st of 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. This opinion must be certified to the Superior Court of Haywood with the appropriate directions.

Per Curiam, Ordered accordingly,.