State v. . McAfee

ClabxsoN, J. The defendant attacks the judgment of the Superior Court, alleging that the judgment was itself conditional and came within the principle which prohibits conditional judgments. But it was in no sense conditional. The judgment itself was that the defendant be confined in the common jail of Lenoir County for a term of fifteen months. The execution of the sentence was suspended upon payment of cost for thirty days; then, afterwards, if she was found in the State of North Carolina, capias was to issue, at the discretion of the solicitor. We do not think the court below had authority to give the solicitor discretion as to when the capias should issue. The issuance of the capias should be under the control of the court and should not be delegated. The court may direct the capias to issue instahier or at a definite or stated time, to be fixed in the order. In the present case the court below can order capias to issue. A solicitor is the most responsible oifieer of the court and has been spoken of as “its right arm.” He is a constitutional officer, elected in his district by the qualified voters thereof, and his special duties prescribed by the Constitution, Art. IY, sec. 23 (judicial department), “and prosecute on behalf of the State in all criminal actions in the Superior Courts, and advise the officers of justice in his district.” It is said,, in Lewis v. Comrs., 74 N. C., p. 198: “A solicitor is not a judicial officer.” * Walker, J., in S. v. Vickers, 184 N. C., p. 679, says: “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 begin to be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should as a rule be strictly exe *322 cuted. But tba order of tbe court, with reference to tbe time when tbis shall be done, is not so material. Expiration of tbe time without imprisonment is in no sense an execution of the sentence. S. v. Yates, 183 N. C., 753-758, citing eases. . . . It is manifest, then, we think, that if tbe judge bad no authority to leave tbe time at which tbe capias should be issued to tbe discretion of tbe sheriff, that is no part of tbe judgment; and so, under tbe circumstances of tbis case, it may be enforced at any time for tbe full term upon an order of tbe court, as tbe defendant was in court, or upon tbe issuing of a capias by tbe clerk of tbe Superior Court under tbe direction of tbe judge, if be was not in court. It would be a mockery of justice if tbe defendant could, upon ■such slight departure from correct procedure, escape tbe lawful punishment for bis crime.” S. v. Shepherd, 187 N. C., 609. Tbe defendant bad other exceptions and assignments of error, but none of them, we think, have merit. For tbe reasons given, there is No error.