State v. . Cardwell

Smith, C. J. (after stating the case). We have not had the benefit of an argument for the prisoner in support of his claim to a discharge, nor does any reason suggest itself to us why it should be allowed, or why the judgment, frustrated by his escape and being at large when it should have been enforced, should not be again pronounced. The effect of the executive interposition was only to substitute a later day for the execution than that appointed by the Judge. Had the prisoner been in the hands of the sheriff, and hung on the 30th day of July, the act would be by virtue of the sentence of the law pronounced by the Judge acting in his judicial capacity. The case is, then, precisely in the same condition as if the original judgment had fixed the later day,and its enforcement had been evaded by the prisoner’s escape. But the administration of the criminal law admits of no such escape from its demands. The penalty incurred must be submitted to, and this is accomplished by the appointment of another date for its enforcement. We are not without authority, if any were needed, to sustain this proposition. *646 Iii State v. Cockerham, 2 Ired., 204, the defendant was adjudged to be imprisoned two calendar months, “from and after the first of November next,” to appear at which time he entered into a recognizance and forfeited it. At a subsequent Term, the solicitor moved that he bo taken into custody and the sentence of the preceding Term carried into effect. This was ordered, and thereupon the defendant appealed. Upon the hearing, Gaston, J., sustained the action ■of the Court below, and said: “ Upon the defendant appearing in Court, and his identity not being denied, and it being admitted that the sentence of the Court had not been executed, it was proper to make the necessary order for carrying the sentence into execution.!’ So in the present case, it was the duty of the Judge, not so much again to sentence to death, but recognizing in force the judgment before rendered, to direct that it be carried into effect on some designated day. This is in substance what was done, and conforms to that repro-nounced in the case referred to. The other objections have already been considered and overruled in State v. Speak, decided at this Term. There is no error, and this will be certified -to the Superior Court of Wilkes, to the end that further proceeding in the case be taken according to law as declared in this opinion. No error. Affirmed.