State v. . Cathey

*796 AlleN, J. Tbe Search and Seizure Law has been declared constitutional in several decisions of this Court, and it is not necessary to further discuss the question. S. v. Wilkerson, 164 N. C., 431; S. v. Denton, 164 N. C., 531; S. v. Moore, 166 N. C., 284. It will be observed from the statement of the ease that the' defendant did not reserve an exception to the evidence of the sheriff when he stated that the general reputation of the defendant was bad for dealing in liquor, and that the exception stated in the record is only to his statement that he knew what his character was; but giving the defendant the benefit of the objection, it cannot be sustained. S. v. Holly, 155 N. C., 485; S. v. Wilson, 158 N. C., 599. In the first of these cases it is stated that a character witness may be asked on cross-examination if there was not a general reputation as to particular matters, and in the second that the rule allows a cross-examination as to reputation of a particular trait but not of particular acts. We have carefully examined the charge of his Honor, and do not find that it is the subject of criticism. Necessarily, he consumed more time in the statement of the contentions for the State than of those for the defendant, as no evidence was introduced in behalf of the defendant; but the question of the guilt or innocence of the defendant was left to the jury as an issue of fact under a fair and accurate charge. The objection to the form of the judgment must be sustained if it is in the alternative and conditional, as a judgment at law must be yea or nay. (S. v. Bennett, 20 N. C., 170; S. v. Perkins, 82 N. C., 684; In re Deaton, 105 N. C., 59; Strickland v. Cox, 102 N. C., 411) ; but when the judgment is considered as a whole it appears that the term of imprisonment is fixed and certain; it is to take effect upon the termination of the prior sentence, and there is no provision in the judgment that would not have been written in it by the law. In other words, the judgment is that the defendant be imprisoned sixteen months, which is to begin immediately if the prior judgment is set .aside on appeal, and at the expiration of the prior sentence if it is affirmed, and this is in legal effect a. judgment of imprisonment for sixteen months to commence after the expiration of the first sentence. “It seems to be well settled by many decisions and with entire uniformity that where a defendant is sentenced to imprisonment on two or more indictments on which he has been found guilty, sentence may be given against him on each successive conviction; in the case of the sentence of imprisonment each successive term to commence from the expiration of the term next preceding. It cannot be urged against a sentence of this kind that it is void for uncertainty; it is as certain as the nature of the matter will admit.” In re Blade, 162 N. C., 458. If cumulative sentences are valid, the remaining question for consideration is the effect of a reversal of the first sentence upon the second, *797 and whether provision being made for this contingency makes the judgment a conditional one. In Kite v. Com., 11 Met. (Mass.), 581, the Court, in speaking of the-certainty of a sentence made’ tó depend upon another sentence, and the effect of a reversal of the judgment upon which the latter is based, said: “Though uncertain at the time, depending upon a possible contingency that the imprisonment on the former sentence will be remitted or shortened, it will be made certain by the event. If the previous sentence is-shortened by a reversal of the judgment, or a pardon, it then expires; and then, by its terms, the sentence in question takes effect as if the previous one had expired by lapse of time.” This language from Chief Justice Shaw was quoted with approval in Blitz v. United States, 153 U. S., 308, and the case is approved by the Circuit Court of Appeals for the Ninth Circuit in United States v. Carpenter, 151 F. R., 214, which is also reported in 10 A. and E. Ann. Oases, 509, with note. In the latter case the following language from Kx parte Jachson, 96 Mo., 116, is also quoted as authority sustaining the decision of the Court: “The only point, therefore, left for discussion is this: Whether the prisoner, having been sentenced at the same term of court to three successive terms of imprisonment in the penitentiary, having reversed the judgment and sentence of imprisonment pronounced against him as-to the second or middle term, and served out his sentence as to the first term, is entitled to be discharged from serving out his third or last term. To this point the response mu.st be in the negative, and for these reasons r The judgment upon which the prisoner’s second term of imprisonment was dependent having been reversed, the case stands here precisely as if he had served out his second term or had been pardoned as to the offense for which that sentence was imposed, and so his third term of sentence lawfully began upon the expiration of his first term.’ ” If, therefore, it was lawful to impose a sentence of sixteen months, to-take effect at the expiration of the first .sentence, and if by legal operation such a sentence would begin immediately upon the reversal of the first sentence on appeal or upon its expiration by lapse of time or otherwise, it cannot impair the validity of the judgment that his Honor set down in words what the law would have written into it. We are of opinion the judgment is authorized by law. No error.