#### THE STATE v. W. M. UNDERWOOD.

An appeal by the defendant in a criminal case to the Supreme Court, vacates the judgment below; therefore, in such a case, where the Supreme Oourt had decided that there was no error, and, upon the transcript being returned, the Solicitor moved for judgment: Held, that the defendant upon producing an unconditional pardon, had a right to be discharged without paying costs.

Motion, for discharge, by a defendant in a case of larceny, made before Buxton, T., at Eall Term 1869 of Union Court.

The defendant had been convicted of larceny, and having appealed to the Supreme Court, judgment had been rendered there, that there was no error (63 N. C. 98,) and a transcript had been sent down accordingly. Thereupon, the Solicitor for the State moved for judgment; but the defendant, having produced an unconditional far cion from the Governor, moved that he be discharged, and that without paying costs. The Solicitor resisted the latter part of such motion. His Honor allowed the motion, and the Solicitor appealed.

*600 F. II. Busbee, for the Attorney-General.

No counsel, contra.

Settle, J.

It has been a common practice in this State to grant pardons upon condition that the defendant pay all costs, &c.

Here, however, there is a general pardon of the offence, without condition. This was pleaded in open Court, after a prayer by the Solicitor for judgment. His Honor was of opinion that the effect of the pardon, was to discharge the defendant, and that he had no power to impose costs or any other conditions. In this opinion we concur.

In Baldry v. Packard, Cro. Charles, 47, cited upon the argument by the Attorney-General, which was a suit in the Spiritual Court for defamation, in which the parties had become interested in the question of costs; and, so in Hall’s case, 3 Coke, 103, it is held that while all proceedings in the Ecclesiastical Court ex-officio, are for the King and, while, therefore, he may pardon any or all suits there pending, still after sentence given and costs taxed for the party, the pardon shall not discharge them. But, if the pardon had been obtained before the sentence, then the pardon had discharged the whole, for then the Court could not have proceeded to any sentence of the principal, and by consequence, not as to the costs which are but accessory. It is true that it is there resolved, that, although an appeal suspends the sentence for divers purposes, yet, by the first sentence the party, notwithstanding the appeal, had an interest in the costs which could not be discharged by the King’s pardon, and, that, therefore, as to this purpose, the first sentence is not suspended by the appeal. But we are not disposed to adopt this reasoning in a a case like ours, which is simply a prosecution in behalf of the .State. We think that the appeal to the Supreme Court vacated the judgment of the Superior Court for all purposes, *601■and the defendant’s being pardoned before judgment, puts an end to the whole matter. How it would have been had the pardon not been granted until after judgment, we-will not undertake to decide until the case is properly before us.

Per Curiam. Affirmed.