Myers v. . Barnhardt

*51 Stact, 0. J. Tbe practice of suspending judgments in criminal prosecutions, upon terms that are reasonable and just, or staying executions therein for a time, with the consent of the defendant, has so long-prevailed in our courts of general jurisdiction that it may now be considered established, both by custom and judicial decision, as a part of the permissible procedure in such cases. S. v. Edwards, 192 N. C., 321, 135 S. E., 37; S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Hilton, 151 N. C., 687, 65 S. E., 1011. It has been held that a court “may suspend judgment upon the understanding that a defendant will compensate an injured party by the payment of money, but it adds no force to such a condition to make it a matter of record. The collection of such damages cannot be enforced by imprisonment without coming in conflict with the constitutional inhibition against imprisonment for debt.” S. v. Whitt, 117 N. C., 804, 23 S. E., 452. In such case, “the only redress open to the State is in the enforcement of the securities taken, so far as they can be made available.” S . v. Warren, 92 N. C., 825. So, in the instant case, while the condition of payment to the plaintiff upon which the defendant, E. A. Earnhardt, was “released from custody,” may not, upon breach of said condition, be enforced by execution of the prison sentence entered in the criminal action, nevertheless, if the condition be lawful and the consideration proper, any bond, or security, taken for its performance, or assurance, may be made available to those in whose behalf it was given. Johnson v. Pittman, 194 N. C., 298, 139 S. E., 440. “The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in eases plainly within the. reasons on which that doctrine rests” — Mr. Justice Butler in Twin City Pipe Line Co. v. Harding Glass Co., 283 U. S., 353, 75 L. Ed., 1112. There is nothing in the case which perforce savors of stifling a. criminal prosecution. Aycock v. Gill, 183 N. C., 271, 111 S. E., 342. Everything that was done had the sanction and approval of the court. Anson on Contract, 301; Maloney v. Nelson, 42 N. Y. Supp., 418, affirmed on appeal, 158 N. Y., 351, 53 N. E., 31. Nor is the bond in suit founded upon a judgment void for alternativeness. S . v. Schlichter, 194 N. C., 277, 139 S. E., 448, and cases there cited. Though the decision in S. v. Bennett, 20 N. C., 170, might lend color to this view. It is conceded that an alternative or conditional judgment is void, whether rendered in a criminal prosecution or a civil action. Flinchum v. Doughton, 200 N. C., 770; S. v. Jaynes, 198 N. C., 728, 153 S. E., 410; Lloyd v. Lumber Co., 167 N. C., 97, 83 S. E., 248; *52 Strickland v. Cox, 102 N. C., 411, 9 S. E., 414. Tbe form of the judgment was not debated in Cavenaugh v. Thompson, 201 N. C., 469. If it should be determined, however, that the bond in question was given as a ransom for the defendant’s freedom, it could not be enforced under the principles announced in Johnson v. Pittman, supra; Aycock v. Gill, supra; Corbett v. Clute, 137 N. C., 546, 50 S. E., 216, and Comrs. v. March, 89 N. C., 268. Const., Art. I, see. 35. “Neither the good intentions of the prosecutor and defendant, nor the approval of the judge, can avail if, in fact, the consideration for the agreement was illegal” — Stirling, J., in Windhill Local Board v. Vint, 45 Ch. D. (C. A.), 351. On the other hand, it would seem that the defendants are in no position to complain at. the civil liability voluntarily assumed under the bond, if, by executing it, they thereby induced the plaintiff to forego her rights in the civil action for damages then pending. Keir v. Leeman, 6 Q. B. (Eng.), 321; Anson on Contract, 301. New trial.