#### STATE v. WILLIAM ELWOOD.

A was indicted for murder, convicted, and sentenced to be banged; he appealed, and the judgment was affirmed. Subsequently he was pardoned: Held, that the court below had no power to amend the original judgment, by adding, “that the cost of the indictment be taxed against the defendant by the clerk, and that the defendant be in custody until the costs were paid.”

MotioN in the cause, heard before Schence, J., at Spring Term, 1S76, of Meciclenburg Superior Court.

The defendant was convicted upon an indictment for murder at Spring Term, 1875, and sentenced to be hanged. From that judgment he appealed to this Court, where the judgment was affirmed. Subsequently the defendant was pardoned. Thereupon a capias was issued, and the defendant appeared in Court and moved the Court that he be-discharged. The Solicitor moved that he be committed to jail until the cost of the action were paid, and for an amendment of the record by adding “ the cost in this indictment shall be taxed against the defendant by the Cleric.”

The Court allowed the motion of the Solicitor, and ordered the defendant into custody. From this judgment the defendant appealed.

Attorney General Hargrove and Bledsoe, for the State.

ihipp & Bailey, for the prisoner.

Rodjian, J.

We concur with the counsel for the defendant that the Judge had no power at Spring Term, 1876, to amend the record of Spring Term, 1875, as of that term, by entering a judgment which, at that term, he had no power to render. He might at May Term, 1875, have given judgment against the defendant for costs, upon which a fi. fa. might have afterwards issued. But he could not then, in *206addition to the judgment that the defendant be capitally executed, have given judgment that he pay the costs and be imprisoned until they were paid, or until his discharge as an insolvent. Such a judgment would be inconsistent with itself.

So much of the judgment below as directs that the defendant be imprisoned until the costs are paid, is reversed.

Let this opinion be certified to the Superior Court of Meck-lenburg, to the end, &c.

Per Curiam. Judgment accordingly.