The defendant had been convicted of a misdemeanor, at Fall Term, 1867, and having been fined five cents, had been ordered into custody to secure the fine and costs. Subsequently some difficulty having arisen as to his disposal, the sheriff let him go upon parole, to report in person from time to time, which he did so long as the sheriff remained in office. Afterwards he went entirely at large until arrested by order of the solicitor for the State (made during vacation) in order to compel him to pay the fine and costs.
(492) The capias having been returned, the solicitor moved that he be committed; and on the other hand the counsel for the defendant moved for his discharge. *Page 377
His Honor deeming the capias unauthorized, granted the latter motion, and the solicitor appealed. One escaping is always supposed to be in custody, and when actually present in court, it will proceed to judgment, or direct one formerly given to be carried out. 2 Hale, 407. He also cited 1 Hale, 565-566, and S. v.Cockerham, 2 Ire., 204.
Merrimon, contra. The defendant could not discharge himself from suffering the judgment of the court by escaping from the custody of the sheriff, whether that escape was voluntary or involuntary on the part of the sheriff. Nor was he discharged by the consideration that the sheriff may have laid himself liable to pay the fine and costs. When it came to the knowledge of the court that the defendant had not suffered the judgment, it was proper to order process of arrest against him, and upon his appearance in court, to order the execution of its former judgment.
It was therefore error in his Honor to discharge the defendant under the idea that the process for his rearrest was unauthorized. If there had been no process at all, it would have been proper for the court to order him into custody (he being in court) and to order the execution of its judgment. S. v. Cockerham, 2 Ire., 204. There is error. Let this be certified, etc.
PER CURIAM. Order accordingly.
Cited: S. v. Vickers, 184 N.C. 678.
(493)