State v. . Hatley

Davis, J. after stating the case: It is earnestly insisted by counsel for defendants that the judgment is an alternative judgment, and as such is void. Is it an alternative judgment? If so, the authorities are abundant to settle the question of its invalidity. Strickland v. Cox, 102 N. C., 411, and cases there cited. The Court had no power to pass a sentence of banishment, and we think the judgment of the Court cannot be fairly construed as a judgment of banishment; if so, it would be void. The only judgment passed by the Court was that the defendants be imprisoned twelve months, and the words “but if the defendants leave,” etc., constitute no part of the sentence or judgment of the Court, but were manifestly intended only as a note or memorandum directing the Clerk to postpone the period at which the sentence shall go into execution, and not as a punishment for the defendants or an infliction upon some other community, predicated upon the assumption that it would be desirable and beneficial, both to the community in which they were engaged in the bad calling of keeping a disorderly and disreputable house, and to the defendants, in giving them an opportunity to reform under new surroundings. Such course is not unfrequent, and though dictated by the best intentions to benefit the public, as well as offenders, is not to be commended. We think it quite clear, when the defendants left the State and speedily returned (for it appears that the Court was held in the latter part of October and they returned early in December), they came within the condition upon which the Clerk was to issue the capias. *525 The application for the writ of certiorari is not as a substitute for a lost appeal, for it is manifest that the defendants did not intend to appeal, and if they did, they have been guilty of laches, and the judgment, as we have seen, being valid, the petition is Denied.