The jury found the defendant guilty of an assault with a deadly weapon, and the court gave judgment of which the following is a copy: "And it is now ordered that Robert Norwood be imprisoned in the common jail of Wake County for the term of six months, beginning on 13 July, 1885; for four (4) months of the said six months imprisonment he may be confined in any other place as the commissioners of Wake County may direct; and it is further ordered that he pay the costs herein, and if he fails to pay said costs when his six months imprisonment expires, it is ordered that he thereafter be confined in the workhouse of Wake County until the costs are paid."
The court did not have authority to imprison the defendant elsewhere than in the county jail, nor did it have authority to delegate (579) to the commissioners of Wake County power to change the punishment imposed by the court to imprisonment in the workhouse or elsewhere. The judgment must be that of the court and such as the law authorizes.
The statute (The Code, sec. 987) provides that "In all cases of assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court, etc. And the statute (The Code, sec. 1174) further provides that "No person shall be imprisoned by any judge, court, justice of the peace, or other officer except in the common jail of the county: Provided, that whenever the sheriff of any county shall be imprisoned it may be in the jail of any adjoining county."
Generally when the statute prescribes the punishment of imprisonment, as in the section above cited, it implies imprisonment in the common jail of the county, and not elsewhere. Such was the general meaning of the term "imprisonment" at the common law, and such it has always been in this State. Indeed, prior to the present Constitution persons convicted of criminal offenses in this State were not imprisoned in any other place than the common jail, and thus the term came to have the general meaning we attribute to it. Now other kinds of imprisonment are prescribed by law, but when these are intended they are *Page 489 specially made applicable to specified classes of offenses or to a particular offense. S. v. McNeill, 75 N.C. 15; S. v. Jackson, 82 N.C. 565.
And for the like reason the court could not direct that if the defendant should fail to pay the cost by the end of the term of six months imprisonment he should next thereafter be confined in the workhouse until he should pay the same. There is no statute that authorizes such order. The court could only give judgment for costs, and these the defendant must pay unless he shall be discharged in the way and as the law allows.
The statute (The Code, sec. 3448) provides that the county commissioners of the several counties may provide under such rules and regulations as they may deem best for the employment of "all (580) persons imprisoned in jails of their respective counties, . . . upon conviction of any crime or misdemeanor, or who may be committed to jail for failure to enter into bond for keeping the peace, or for good behavior, and who fail to pay costs which they are adjudged to pay, or to give good and sufficient security therefor: . . . Provided,also, it shall not be lawful to farm out any such convicted person who may be imprisoned for the nonpayment of a fine, or as punishment imposed for the offense of which he may have been convicted, unless the court before whom the trial is had shall in its judgment so authorize."
This does not authorize the court to designate such employment or where it shall be performed. That matter is left to the discretion of the county commissioners, under rules and regulations prescribed by them.
So much of the judgment as is erroneous cannot be treated as surplusage, and therefore immaterial, because it might mislead the county commissioners, and besides, but for such orders in the judgment it may be that the court would have given a different judgment. The law did not authorize it, and judgment must be such, and such only, as the law authorizes.
The defendant is not entitled to a new trial, but to have such judgment against him as the law allows.
There is error. Let this opinion be certified to the Superior Court according to law.
Error. Reversed.
Cited: S. v. Johnson, 94 N.C. 865; S. v. Pearson, 100 N.C. 415; S.v. Hicks, 101 N.C. 748; S. v. Young, 138 N.C. 572. *Page 490
(581)