#### STATE v. JOE YATES.

(Filed 5 April, 1922.)

1. Habeas Corpus — Appeal and Error — Certiorari—Constitutional Law.

Except in cases concerning the care and custody of children, an appeal will not lie by the prisoner from-the refusal of the judge in habeas corpus proceedings to liberate him, his remedy being to have the case reviewed by certiorari. Const., Art. IY, sec. S.

2. Same — Appeal and Error — Dismissal—General Interest.

The prisoner, rearrested for violating the conditions of a parol granted by the governor after the term of his sentence had expired, sued out habeas corpus proceedings, and upon the denial of his claim of right to be set at liberty, appealed to the Supreme Court: Held, certiorari being the proper procedure, the appeal is dismissed, but its merits passed upon as being a question of public importance and general interest. In re Sermon’s Land, 182 N. C., 127; Cement Co. v. Phillips, ibid., 440.

*754S. Pardon — Parole—Conditions.

Under the provisions of onr State Constitution and Statutes, a “parole” granted by the governor to a prisoner imports a conditional pardon, and the governor may cause Ms rearrest either upon his own admissions, or on such evidence as he may require, for violating the conditions which the prisoner has accepted under the terms of the parole. C. S., secs. 7642, 7643, 7644, 7749, 7752; Const., Art. IY, sec. 8.

4. Same.

The power of the governor to grant a conditional pardon is generally subject to the limitation that the conditions imposed must not be illegal, immoral or impossible of performance, which do not apply to this case, wherein he is only required not to violate the statute law, and remain of good conduct.

5. Same — Breach of Conditions.

Where the prisoner has accepted his freedom upon the terms of the conditional pardon from the governor, his breach of such conditions avoids the pardon and cancels his right to further immunity from punishment.

6. Same — After Expiration of Term of Sentence — Punishment.

The essential part of a sentence for a violation of the criminal law is the punishment for the offense committed, and not the time the sentence shall begin and end; and where the prisoner has accepted a conditional pardon from the governor and has obtained his freedom, the breaking of the condition after the term would have otherwise expired, affords no legal excuse why he should not be recommitted to serve out the balance of his sentence.

Appeal by defendant from Connor, J., at December Term, 1921, of New HaNoveb.

Appeal by defendant from judgment on writ of habeas corpus. In October, 1919, the defendant was tried and convicted in recorder’s court of the city of Wilmington for violation of the prohibition laws, and sentenced to the roads for a term of twelve months. He had served about forty-two days of his term when, on 10 December, 1919, Governor Bickett granted the following “parole” :

"To the sheriff of New Hanover County:

“Upon the recommendation of the prosecuting attorney, the judge of the recorder’s court of New Hanover County, and other representative citizens, the prisoner Joe Yates, now serving a sentence on the roads of New Hanover County, is hereby paroled for the balance of his term upon condition of good behavior and remaining a law-abiding citizen, and upon the further condition that should he violate the foregoing condition he shall receive no credit of his sentence for the time he is out on parole.”

• Between 10 December, 1919, and 2 December, 1921, the defendant was charged with repeated breaches of thé criminal law.

*755On 2 December, 1921, Governor Morrison issued tbe following “revocation of parole”:

“To the sheriff of New Hanover County — Gkeetifg :

“I hereby revoke tbe parole of Joe Tates, granted 10 December, 1919, upon satisfactory information that terms of said parole have been violated. You are hereby commanded to take the prisoner and to recommit him, in order that he may serve the remainder of his term, with no time allowed for previous good behavior, if any such time was entered to his credit.

“The prisoner was tried in the recorder’s court of the city of Wilmington on 28 October, 1919, it being charged in the warrant that he violated the State prohibition law by operating a monkey-rum still and, making monkey rum. The judgment of the court was that he serve twelve months in jail, to be assigned to work on the county roads of New Hanover.”

On 4 December, 1921, the clerk of the Superior Court of New Hanover issued a capias for the defendant, and upon his arrest the defendant applied to Judge George W. Connor for a writ of habeas corpus. His Honor heard the petition during the December Term, 1921, of New Hanover, and, adjudging that the defendant was in lawful custody, refused to release him.

The defendant excepted and appealed.

Attorney-General Manning and, Assistant Attorney-General Nash for the State.

J. C. King and Herbert McQlammy for defendant.

Adams, J.

In Holley’s case, Hoke, J., said: “Our statute law has made no provision for appeal from a judgment in habeas corpus proceedings, except in cases concerning the care and custody of children. Rev., 1854; C. S., 2242. Therefore, it is that when, on such a hearing a question of law or legal inference is presented, and the judgment therein involves the denial of a legal right, it may be reviewed by certiorari, under and by virtue of the power conferred on this Court by the last clause of section 8, Article IV, of our Constitution: ‘And the Court shall have power to issue any remedial writs necéssary to give it general supervision and control over the proceedings of the inferior courts.’ ” In re Holley, 154 N. C., 164; S. v. Lawrence, 81 N. C., 523; S. v. Herndon, 107 N. C., 934; In re Croom, 175 N. C., 455; In re Fountain, 182 N. C., 49. For this reason the defendant’s appeal must be dismissed; but as the record presents a question of public importance and general interest, we will regard it as one of the exceptional cases *756that warrant consideration of the defendant’s contention upon the merits. In re Sermons Land, 182 N. C., 127; Cement Co. v. Phillips, ibid., 440.

The Constitution confers upon the Governor the power to grant reprieves, commutations, and pardons, except in cases of impeachment, upon such conditions as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Constitution, Art. III, sec. 6. In the exercise of the authority granted in the provision last cited the General Assembly has prescribed certain statutory duties which are to be observed by the applicant. Every application for pardon must be made to the Governor in writing, stating the grounds upon which executive clemency is sought, and must be signed by the applicant, or by some person in his behalf; and the Governor may grant a pardon, subject to such conditions, restrictions, and limitations as he may consider proper and necessary. C. S., 7642, 7643. When the prisoner violates the conditions which he must observe or perform, the Governor, “upon receiving information of such violation,” shall forthwith cause him to be arrested and detained until proper examination can be made; and if it appears by his own admission, or by such evidence as the Governor may require, that he has violated the condition of his pardon, the Governor shall order him remanded and confined for the unexpired term of his sentence. C. S., 7644. It is worthy of note, in this connection, that neither the Constitution nor the statute law authorizes a “parole,” unless the word be construed as importing some form of conditional pardon. The advisory board of parole created by section 7749 merely determines whether in their judgment a person confined in the State’s Prison is a proper subject of imrole under a conditional pardon. Section 7752 et seq. We therefore regard- it clear that Governor Bickett’s order must be interpreted as a pardon on condition that the defendant should comply, with the terms imposed. So the instant and only question is this: Did Governor Morrison have the legal right to revoke Governor Bickett’s conditional pardon after the time fixed in the original sentence had expired?

“It seems agreed that the king may extend his mercy on what terms he pleases, and, consequently, may annex to his pardon any condition that hé thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” Bacon’s Abr., 412. Under the modern law the power to grant a conditional pardon is generally subject to the limitation that the conditions imposed must not be illegal, immoral, or impossible of performance. The conditions contained in the parole granted by Governor Bickett cannot be impeached on either of these grounds; and the defendant by accepting the pardon accepted also the conditions subsequent, a breach of which avoided the pardon and canceled his right to further immunity from punishment. *757 In re Williams, 149 N. C., 436; Fuller v. State, 122 Ala., 32. In other words, when snob breach by the defendant was duly determined, and his conditional pardon thereby avoided, the defendant at once became subject to rearrest, although the time for which he had been sentenced had expired. Any other process of reasoning would disregard the primary fact that the essential part of the sentence is the punishment and not the time when the punishment shall begin or end. This doctrine is clearly stated in State v. Horne, 7 L. R. A. (N. S.), 719. There the defendant was convicted in 1898 of assault with intent to murder, and sentenced to live years imprisonment; in 1901 a conditional pardon was granted; and in 1906, “long after the term of years of his original sentence had expired,” the Governor of the State revoked the pardon and the defendant was recommitted to prison. The defendant contended that his imprisonment was illegal, and the lower court discharged him on the ground that the alleged breach of the conditions occurred after the period of his sentence had expired. The Supreme Court reversed the judgment, and, among other things, said: “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 sentence 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 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 the sentence shall be executed is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence. Hollon v. Hopkins, 21 Kan., 638; Dolan’s case, 101 Mass., 219; S. v. Cockerham, 24 N. C. (2 Ired. L.), 204; Ex parte Bell, 56 Miss., 282; In re Edwards, 43 N. J. L., 555; 38 Am. Rep., 653, note.” And further: “The defendant in error accepted the conditional pardon, thereby securing his release from imprisonment; and he is bound by its legal conditions and limitations. The provisions of the pardon are, in effect, that if at any time during his life the defendant in error shall fail to observe its conditions, the pardon shall be null and void, and he shall be arrested to serve out the remainder of his sentence of imprisonment that he has not already actually suffered. The violation at any time of the conditions of the pardon renders it, by its terms, null and void, and the status of the defendant in error is as though he had never received the conditional pardon. If, when the conditions of the pardon are violated, a portion of the quantum of imprisonment fixed by the sentence has not been suffered or served, the party should be returned to serve the> remainder of his time of imprisonment, as stipulated in the terms of the pardon; and, besides this, the pardon, by the breach of its conditions, *758is rendered in law void; and, if tbe sentence of imprisonment bas not been fully executed, tbe law imposes tbe obligation to complete tbe service of imprisonment fixed in tbe judgment of conviction and sentence of punishment. Tbe pardon may, as one of its restrictions and limitations, designate tbe time for tbe observance of its conditions; but, wben tbe conditions are violated, tbe pardon becomes void in law, and tbe party is subject to tbe unsatisfied portion of tbe sentence as tbougb no pardon bad been granted.”

In S. v. Barnes, 32 S. C., 14, tbe same question arose, and McIver, J., said: “While it is quite true that tbe term of two years imprisonment, to wbicb tbe defendant bad been sentenced in 1883, bas long since expired, yet it is equally true that tbe defendant bas not yet suffered imprisonment for that length of time; and as the pardon which he pleads bas been adjudged insufficient to relieve him from suffering the whole punishment originally imposed upon him, it follows, necessarily, that he is still liable to be required to complete the term of imprisonment originally imposed, just as if be bad escaped during that term. And such is the clear result of the authorities, both English and American.”

These and other decisions fairly illustrate tbe principle wbicb we think should be applied in tbe case at bar. There are others wbicb apparently are in accord with tbe defendant’s contention, but our researches have convinced us that the conclusion we have reached is supported by tbe better reasoning and authority. Fuller v. State, 122 Ala., 32; S. v. McIntire, 59 Am. Dec., 576 N; Ex parte Hawkins, 61 Ark., 321; S. v. Chancellor, 47 Am. Dec., 557; S. v. Smith, 19 Am. Dec., 679.

In our opinion the defendant cannot maintain bis defense of exemption from rearrest on tbe ground that tbe breach of bis parole took place after tbe expiration of tbe time for wbicb be was originally sentenced.

The appeal is dismissed.