#### In the Matter of LEO HINSON, alias Mrs. ERNEST ROCHELLE.

(Filed 11 October, 1911.)

Power of Courts — Sentence of Imprisonment — Temporary Withholding of Capias — Conditioned on Prisoner Leaving County — Rearrest — Limitation of Actions.

A verbal order of the trial judge to the clerk not to issue a capias to carry into effect a sentence of eight months imprison*251ment of defendant in tlie county jail, until fifteen days after tlie adjournment of court, and his saying to the prisoner if slie would leave tlie county within the fifteen days and not return she would not be compelled to serve her sentence, is not a decree of banishment, as it is for the prisoner’s volition as to whether she would leave and avoid serving a legal imprisonment; and the fact that she did leave within the time allowed and returned after a longer period of time than that of the sentence will not avail her as a defense, as her absence was not equivalent to serving her sentence, and there is no statute of limitations in such cases.

Appeal by petitioner from Whedbee, J., in habeas corpus proceedings, from WayNE, beard Y June, 1911, at Goldsboro.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

W. 8. O’B. Robinson, George E. Hood, and R. M. Robinson for petitioner.

Attorney-General contra.

ClaeK, C. J.

This is a certiorari, in lieu of an appeal, to review a judgment denying the discharge of the petitioner on habeas corpus. In re Holley, 154 N. C., 163.

At August Term of Wayne, 1910, the petitioner was' convicted of retailing spirituous liquor. The entry on the docket is simply, “Judgment of the court that the defendant be imprisoned in the county jail for eight (8) months,” The judge below, in this proceeding, finds that the trial judge said to the defendant that if she would leave the county of Wayne and not return, she would not be compelled to serve the sentence of imprisonment, and directed the clerk of the court verbally not to issue capias to carry into effect the judgment pronounced until fifteen days after the adjournment of the court. Within that time the petitioner left the county of Wayne and took up her abode in the adjoining county of Wilson, where she abided until after the expiration of the eight months, when she returned to Wayne. Thereupon she was taken in arrest upon the capias issued by the clerk, as directed by the trial judge, fifteen *252days after tbe adjournment of said court, and was imprisoned in tbe county jail in execution of tbe judgment above set out.

Tbe petitioner being in jail under a judgment of tbe court, bis Honor properly refused to discharge ber. If tbe judge bad suspended judgment and afterwards in accordance with tbe terms thereof bad passed sentence it would have been valid. S. v. Hilton, 151 N. C., 687. Tbe judge might in bis discretion have passed judgment to begin at some future time (S. v. Hamby, 126 N. C., 1066), as, for instance, to begin fifteen days after tbe adjournment of the court. But be did neither of these things. He did less. He rendered an absolute judgment of imprisonment, and simply directed tbe clerk not to issue capias thereon for fifteen days. This was in bis discretion. This is sometimes done to give tbe defendant time to go home and arrange bis affairs. In this case tbe kind-hearted judge, doubtless on account of tbe sex of tbe defendant, purposely gave ber an opportunity to avoid execution of ber sentence. In S. v. Hatley, 110 N. C., 522, tbe Court said that “Such course is not infrequent, and though dictated by tbe best intentions to benefit tbe public, as well as offenders, is not to be commended,” adding, that tbe court bad no power to pass a sentence of banishment, but that tbe judgment of tbe court could not be fairly so construed, and that if tbe defendant returned after tbe time specified, capias should be issued to execute the judgment.

Tbe judgment of tbe court herein is unequivocal. Tbe opportunity which tbe withholding of tbe capias afforded tbe defendant to escape was not a decree of banishment. There was nothing requiring ber to leave. If she left it was of ber own free will and accord, and was legally sc flight from justice. Tbe defendant cannot plead ber own wrong in leaving tbe jurisdiction of tbe court, by ber own voluntary act, as a protection against a legal sentence.

Tbe distinguished counsel who represented tbe defendant attempted to distinguish this case from S. v. Hatley, supra, on tbe ground that in this case tbe defendant remained in the adjoining county for tbe full eight months of tbe sentence. There is no statute of limitations in such case. Tbe position of counsel could be sustained only on tbe ground that eight months *253sojourn in another county is the equivalent of eight months imprisonment in the county jail of Wayne. His loyalty to his home is like that of 'the Argive, '

> “Who, in dying, remembered sweet Argos.”*

His position if submitted as a proposition of fact to a Wayne County jury might possibly not be altogether hopeless, but we cannot sustain it as a proposition of law. The judgment is

Affirmed.

*

“ Dulce moriens reminiscitur Argos.” Verg., 10 En., 783.