State v. Henderson

CoNNOR, J.

In Myers v. Earnhardt, 202 N. C., 49 , 161 S. E., 715 , it is said:

“The practice of suspending judgments in criminal prosecutions, upon terms that are reasonable and just, or staying executions therein for a *260 time, with the consent of the defendant, has so long prevailed in our courts of general jurisdiction that it may now be considered established, both by custom and judicial decision, as a part of the permissible procedure in such cases.

S. v. Edwards, 192 N. C., 321 , 133 S. E., 37 ;

S. v. Everitt, 164 N. C., 399 , 79 S. E., 274 ;

S. v. Hilton, 151 N. C., 687 , 65 S. E., 1011 .”

This practice has not only been established by custom and judicial decision, it has received express legislative sanction with respect to judgments in criminal actions in which defendants have been convicted of abandonment. C. S., 4447. It is provided by statute that “upon any conviction for abandonment, any judge, or any recorder having jurisdiction thereof, may in his discretion make such order as in his judgment will best provide for the support, as far as may be necessary, of the deserted wife or children, or both, from the property or labor of the defendant.” C. S., 4449.

In the instant case the effect of the order contained in the second paragraph of the .judgment was merely to suspend the execution of the judgment so long as the defendant complied with the conditions therein imposed by the court and accepted by the defendant.

S. v. Vickers, 196 N. C., 239 , 145 S. E., 175 . The defendant did not object to the order on the ground that the conditions were indefinite, or appeal from the order to this Court, as did the defendant in S. v. Vickers, supra.

Having accepted the conditions, and undertaken to comply with them, he cannot, after his failure to comply with the terms on which the execution of the judgment was suspended, challenge their validity.

S. v. Burnette, 173 N. C., 734 , 91 S. E., 364 . Indeed, if the conditions are void, as now contended by the defendant, the judgment has at all times been enforceable; on the other hand, if the conditions are valid, the defendant having failed to comply with them, cannot resist the enforcement by the court of the judgment that he be confined in the common jail of Randolph County for a period of twelve months. In either event there was no error in the order of Judge Harding, unless, as contended by the defendant, he was relieved of both the conditions and the judgment at September Term, 1931, by the judgment of divorce at November Term, 1933, of the Superior Court of Alamance County. Neither the judgment rendered in this action nor the conditions on which the execution of the judgment was suspended are affected by the judgment of divorce. See Howell v. Howell, 206 N. C., 672 , 174 S. E., 921 .

Whether the judge, at April Term, 1934, had the power in his discretion to modify the conditions on which the execution of the judgment rendered at September Term, 1931, was suspended, on the facts found by him, is not presented on this appeal. Having found that the defendant had failed to comply with these conditions, the judge had the power *261 to order that tbe judgment be enforced.

S. v. Strange, 183 N. C., 775 , 111 S. E., 350 . Tbe divorce of tbe defendant from bis wife, subsequent to tbe judgment in this action, did not relieve tbe defendant from tbe judgment as a matter of law.

Tbe order of Judge Harding is Affirmed.