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  "name": "In the Matter of LEANDER SMITH",
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    "parties": [
      "In the Matter of LEANDER SMITH."
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    "opinions": [
      {
        "text": "DeviN, J.\nThe petitioner, Leander Smith, applied to Judge Bone for writ of habeas corpus, alleging that he was illegally restrained of his-liberty under a judgment of the recorder\u2019s court of Wilson, North Carolina. After hearing the matter, Judge Bone was of opinion that petitioner\u2019s restraint was legal and declined to discharge him from custody. Thereafter petition for writ of certiorari to review the order of Judge-Bone was allowed by this Court, and the ease was brought here for determination of the question of the legality of petitioner\u2019s restraint.\nThe material facts were these: On 14 November, 1938, petitioner was tried in the recorder\u2019s court of Wilson on the charge of unlawful possession and sale of intoxicating liquor, and found guilty. The following judgment was entered: \u201cAfter bearing the evidence, it is adjudged that the defendant is guilty of the offense charged. Fine $25.00 and costs and six months on the road, capias for -road sentence to issue on motion of Solicitor.\u201d\nOn 17 June, 1940, petitioner was again tried in the same court on the charge of unlawful possession and sale of intoxicating liquor, and again found guilty. From sentence imposed in that case petitioner appealed to the Superior Court. At the same time the solicitor made a motion in the court for capias and commitment in the case tried 14 November, 1938. The motion was allowed and capias and commitment were ordered by the court to issue, and the petitioner was placed in custody. Writ of habeas corpus was sued out and hearing had 13 July, 1940. Petitioner\u2019s restraint was adjudged legal.\nThe question here presented is whether the recorder\u2019s court had the power, upon motion of the solicitor in open court, to cause capias and \u25a0commitment to issue and to require petitioner to serve the sentence imposed by the judgment of 14 November, 1938.\nUpon consideration of the original judgment entered by the recorder\u2019s court (which court had final jurisdiction of the cause and of the person -of the petitioner), and of the subsequent proceedings as disclosed by the record, we are of opinion, and so decide, that the judge below has ruled correctly, and that the order denying petitioner\u2019s release under writ of habeas corpus must be affirmed.\nThis was not a case of judgment suspended upon condition. S. v. Hardin, 183 N. C., 815, 112 S. E., 593; S. v. Gooding, 194 N. C., 271, 139 S. E., 436. Here the sentence was definitely imposed by the judgment and the term of imprisonment was fixed. There were no conditions attached. The execution of the sentence was not at the time put into effect, but was delayed until the solicitor should make motion in court for capias. S. v. Vickers, 184 N. C., 676, 114 S. E., 168. Thereafter the petitioner being before the court, and it appearing that the \u25a0sentence had not been served, upon motion of the solicitor, and in the exercise of the power of the court, the sentence already adjudged was \u25a0ordered to be executed and service of sentence to be begun. S. v. Cardwell, 95 N. C., 643; S. v. Cockerham, 24 N. C., 204. The validity of the original judgment was not impaired by reason of the delay in putting it into effect. 15 Am. Jur., 147. \u201cThe time at which a sentence shall be carried into execution forms no part of the judgment of the court.\u201d S. v. Vickers, supra. \u201cThe essential part of the sentence is the punishment and not the time when the punishment shall begin.\u201d S. v. Yates, 183 N. C., 753, 111 S. E., 337; S. v. Horne, 52 Fla., 125; 7 L. R. A. (N. S.), 719. When the court\u2019s attention was called by the \u00a1solicitor\u2019s motion to the fact that its judgment had not been enforced, it bad power to order tbe execution of tbe sentence. S. v. McAfee, 198 N. C., 507, 152 S. E., 391; S. v. Manon, 204 N. C., 52, 167 S. E., 493; Bernstein v. United States, 254 Fed., 955. The judgment of 14 November, 1938, was not void. S. v. Edwards, 192 N. C., 321, 135 S. E., 37. Nor may tbe writ of hateas corpus be substituted for appeal. In re Adams, ante, 379.\nTbe judgment below declining to discharge tbe petitioner from custody is\nAffirmed.",
        "type": "majority",
        "author": "DeviN, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Aitorneys-General Bruton, and Patton for the State.",
      "A. 0. Dickens and Connor & Connor for petitioners."
    ],
    "corrections": "",
    "head_matter": "In the Matter of LEANDER SMITH.\n(Filed 7 November, 1940.)\n1. Criminal Law \u00a7 63 \u2014 Time when punishment is to begin is no part of judgment, and execution may he suspended with leave to solicitor to move for capias.\nUpon conviction, defendant was sentenced to six months on the roads, capias to issue on motion of the solicitor. Held: The judgment was not suspended but the sentence was definitely imposed with execution thereon delayed until the solicitor should make motion in court for capias, and' the judgment is valid, the time when sentence shall be executed and punishment begun being no part of the judgment, and therefore execution of the sentence may be had at' any time thereafter upon motion of the-solicitor in open court in the presence of defendant.\n2. Habeas Corpus \u00a7\u00a7 2, 8\u2014\nThe writ of habeas corpus may not be used as a substitute for appeal, and where defendant has been confined upon execution of a valid sentence in a criminal prosecution, his petition is properly denied.\nCertioRabi to review order of Bone, J., in habeas corpus proceeding-instituted by Leander Smith. From WinsoN.\nAffirmed.\nAttorney-General McMullan and Assistant Aitorneys-General Bruton, and Patton for the State.\nA. 0. Dickens and Connor & Connor for petitioners."
  },
  "file_name": "0462-01",
  "first_page_order": 530,
  "last_page_order": 532
}