*1 437 ample the deceased, struck and this was evidence from which the jury negligence could infer and fix causation, upon the blame the defendant.
The (6 case of Armour & Co. v. Gulley, S. 165), E. by distinguishable relied on 2d, defendant, is also upon its from simple facts the instant case reason that in that case there was no potted evidence that connected the packed meat and sold the defendant and purchased and con- plaintiff plaintiff’s sumed with the illness. plaintiff these reasons,
For verdict for the authorized, trial court did not err in overruling the motion for new trial.
Judgment concur. Sutton, J., Felton, J., C. affirmed.
32908. KENIMER v. STATE OF GEORGIA ex rel.
Webb, Solicitor-General April 1950.
Decided *7 Camp McCracken, Lindsay, Dorsey & Chance & Hill, Harris, & Camp, plaintiff in error. contra. Webb, Solicitor-General, Hall,
Paul
William
neces
J. 1.
are faced at the outset with the
We
Felton,
sity
on
rulings
to determine the effect of the
the demurrers
quash prop
motion
quash.
motion to
If the demurrers and
to
one
erly
petition charged
question
only
raised
whether the
the
rulings
contempt
thirty-eight,
of
or
hundred and
the
act
two
precluded
thereon became the law the
and this
of
case
the
question.
think
from further consideration
the
We
of
ques
quash
properly
did
raise the
demurrers and the motion to
the
the
of
rulings, unexcepted to,
tion and
became
law
subject-
parties
jurisdiction
The
of the
case.
court had
petition
of
preliminary paragraphs
matter. The
state
related
history
against
respondent
and the
of
case
facts
what
clearly
therein
show
contended to be the
of
what is
truth
pe
at the
happened. The demurrer and motion were directed
The
all counts.
merely
tition as a whole and not
to each and
there
alleged
petition
showed
under the facts
as a whole
or
hundred
just
act of
there were two
was either
one
demurrer
speaking
not
thirty-eight.
demurrer was
a
The
consideration
point
necessary without
decision on this
as a
be
alleged had
facts. Of course the facts
to
extraneous
on
point
beside the
judgment but that is
proved authorize
445
question
rulings
The
under discussion.
in civil cases as
binding
judgment
pleadings
effect
or not
of a
on
unreversed
applicable
set aside are also
criminal cases.
v.
Matthews
(54
192);
4. assigned ten the amended motion error is on the following exclusion from evidence of letter: “At lanta, Georgia, July 25, 1947. Mr. Bev Kenimer, Charles 195 erly N.E., Road, Atlanta, Georgia: Charlie: As I have often you divorcing you times told I am marry Senter, not to Wade agreed upon and since we have custody Betty, hereby I you promise any that if time in the future I marry should Wade you then not Senter, custody Betty, can have the and I will oppose object or you having custody, happen. if this should to agree you may I further letter that use this evidence in as 446 Yours
court,
again
marry
I
I
Senter.
as
reiterate will not
Wade
was
of the letter
truly, Muriel Moran Kenimer.” The exclusion
con
probative
relevancy
error.
no
or
value on
It had
to
that
tempt
complaint
issue. There is no
court refused
fixing punishment.
it in
consider
fourteen
through
eleven
5.
of the
motion
Grounds
amended
general grounds
controlled
are mere
and are
elaboration of
finding
law of the
evidence authorized
case. The
contempt
charged
pe
respondent
guilty
as
a
the motion for
tition,
overruling
and there was
error in
no
in
grounds properly included,
trial
all
does not
new
on
which
imposed.
exceptions
clude
sentence
impose
each
jurisdiction
punishment
6. The court had
count.
though
legal
the total
for one
count
exceeds
limits
(94
259);
Brannon v.
21
S. E.
Peters v.
(7) (36
Genecov,
Ex
U.S.,
105);
parte
94 Fed.
C.C.A.
A. S.
1099).
(186
A.L.R.
2d, 225,
7. We now come to the most difficult in the judicial discre punishment inflicted is an whether abuse I, tion and cruel and unusual to contravene article section so seem I, paragraph may IX the Constitution. it State While punishment meted illogical even say somewhat if the legal total the sum proper out on each individual count and is effects excessive, is and result and cruel cumulative unusual, pieces. dividing into judgment be cannot avoided judgment rendered and knew what the effect The court but one judgment be, $11,900 fine and confinement of that would or more years. may logical, j three It at least ail over count nearly logical, say the sentence on each individual cumulative circumstances, when their under the was excessive think that the sentence effect is taken into consideration. We against its spirit law of this and contrary to the State contempt a single policy. The law limits how twenty days jail, matter no $200 to the maximum of malicious, iniquitous the act of flagrant, how how line respondent caught been at the State be. If the had might exceeded fine day punishment could not have first fact jail twenty despite days, and confinement in $200 design would purpose as he he had the same overall *9 have had if he purpose had succeeded in his and defied the thirty-seven days. two hundred and sentence more The in multiple punishment case seems to include and cumulative a single design. error say judge do not that in We was imposed because he sentence for each technical violation of order, case, court’s under the that but we do think law the punishment entirety. Another reason was excessive in its why contrary spirit the sentence is to the the law of against and the law punishments, cruel and unusual is long say sentence jail exceptional. confinement in sois To is put mildly. places it primarily unusual is Jails are places punishment except confinement and not or methods of cases, few pos and contempt misdemeanor cases cases and sibly others, but it is seldom misdemeanor cases a crimi nal required is to serve more six jail than months in even under involving sentences long more than one misdemeanor. Such a jail term in inevitably will impair tend health of respondent. respondent agree While we that the should suffer some we very do not think law is which he being flouting tried for and.trampling under his feet should so oppressive and cruel dealing in its with him as to tend make it unworthy respect respondent which the charged abusing. with We intend criticism judge no trial whose error on question such a by high novel actuated devotion to the courts laws which lightly have been so treated the respondent. plane In such a case as this of observation justice is sometimes the dare difference between and error. We say point that if our of observation were reversed with that the trial judge and he reviewed the same sentence our too-close up view would be revised him.
The rendering any judgments court did err in com- plained except sentence, which was erroneous. The judg- ments are exception affirmed with the judgment impos- that the ing sentence is reversed with direction' that court, without retrying judgment issues, enter imposing another sentence not inconsistent opinion. with this
Judgments part with di- part, and reversed in affirmed Sutton, rection. concur. Worrill, Townsend Gardner, JJ., C.J., dissent. MacIntyre, P.J., *10 demurrer on J., dissenting. adjudicated C. It was
Sutton, pe- superior quash in court and the motion to up set against charged and tition M. Kenimer Jr. Charles rulings separate contempt against him. These were acts of respect, excepted in this to and the law of the case became right wrong. appears or the record that whether from It re- upon hearing finding evidence authorized the petition filed guilty contempt charged in the spondent of as was superior imposed court then against judge him. The of the respondent days upon the imprisonment $50 fine and of 5 of him. re- charges against If the contempt on each the 238 of as contempt, guilty separate offenses of spondent was of 238 would proceeding, determined in this then it follow was offense; punish him authority had on each judge the trial to pre- imposed not exceed that punishment and where the does legally by law, I am inclined believe this court cannot scribed to ground on the judgment judge reverse or set the the trial aside of and excessive, cruel, total was that the sum of unusual. opinion 2, 3, 4, majority 6 of the 5,
I concur in divisions and ruling from in division thereof. and dissent over- dissenting. the order of the court J.,P. MacIntyre, petition ruling demurrer quash the motion and the to against court defendant adjudication contempt of said: defend- contempt against adjudications of petition
“The Kenimer alleges in M. defendant, ant substance that Charles him jurisdiction of for an award to Jr., invoked the court was Kenimer, Ann child, Betty who custody of minor his the determi- custody mother; pending her in the lawful of defendant Kenimer came into this petition, nation of that upon him visit child procured authorizing an order said and accompa- provided he hours, days between certain certain during by attorneys one of who such visits nied at times all of Kenimer, said accompanying so officers charged, were home was returned to the that said child ‘seeing with the court pe- visitation.’ day 4:30 on each The her mother said Kenimer, February said alleges 5, 1949, that on further tition court, home went to the of said officers accompanied one County carried the child child’s mother Clarke and parents of Kenimer’s in Atlanta and that while there the home wilfully took, removed defendant, Jr., said M. Kenimer Charles spirited away, purpose and with the and intention' said child beyond jurisdictional the State removing child limits of said jurisdictional Georgia beyond and of the United limits America, States of and failed return child and refused to said to the County, her mother in Clarke on Satur- Georgia, home of day, February required by order of so 5, 1949, as the court do, every each and Oc- day including thereafter until and 1, 1949, orders, tober all in violation of judgments authority court, purpose said *11 preventing jurisdiction the effectual the court exercise of the of question which he had custody invoked on the of the of the child; contrary authority, flagrant to and in disobedience of the orders, judgments jurisdiction and of the State.
“Count One charges February “Count Keni- 5, 1949, one that on defendant mer take, spirit away did remove and and said child and failed day the refused on said return child to the home to said of of mother of child in the order of said violation of this court January 28, requiring him 1949, to so return said child to custody mothor, that on said date re- and the defendant jurisdictional moved the said child without the of this limits purpose State interfering for the of with ef- impeding and jurisdiction fective exercise respecting of of court this permanent custody determination of the child in said said case.
“Other Counts charges this contempt “Count two defendant Kenimer with February 6, 1949, in that he refused return child to 28, required by to her order January mother as this court’s keep and that he did on date said said child without the purpose jurisdictional impeding State limits jurisdiction interfering with the respecting of this court permanent custody determination of said child invoked as by him in said case. same,,
“Each other counts is substance and form except alleged date two that a different is each. as count quash motion by the raised questions “All of the pe- allegations of the by the must determined the demurrers only by such. tition Quash.
“Motion to upon ground quash proceedings moved to “Defendant alleged two carve out of one offense that said seeks to citation thirty-eight separate hundred offenses. alleges instance petition sufficiently one
“I if the believe that quash, duty overrule the motion to my it would be one alleges petition and since it its terms concedes ad- motion be overruled. This is motion should contempt, this (not just or different petition parts to the whole dressed is it impeach petition, the whole counts) and since does demurrer three of the However, ground since without merit. in- thirty-eight, hundred and counts to two which attacks two peti- general theory that upon the same clusive, is based contemptuous act or charges one tion defendant with but period two contemptuous act continuance of the same there thirty-eight days and therefore that hundred consecutive I will treat of this separate punishment day, for each can be no here. contention pe- stated, alleged I we must take the
“As facts each alleges return tition. It a failure or refusal the child on days. thirty-eight separate Each refusal of two hundred alleged order. *12 to be violation of the court’s a petition two alleges each
“It to be noted that is count vio- (1) alleged on did the date matters: the defendant That the by refusing to return the child to late an order of court alleged (2) that the custody mother; of its defendant on date purpose im- jurisdiction for kept said child out of jurisdiction respect- peding interfering and with the of the court permanent child. custody ing the determination of the charges court’s item violation of the brief, “In the first a charges obstruc- item by obey refusal and the second order to a operation the court. tion is if defendant contends that there the first item the “On appears order it that alleged any violation of the court’s there failure to return the child. only continuous one act—a may course, one order elementary that, state to “It seems time. illustration—the than one For be violated more his from removing car enjoins Doe from his orders and John takes John Doe Monday month. garage period for a of one On to garage drive but returns it car out of the for a again takes night. Tuesday on he garage Monday Then Tues- garage car for drive and likewise returns it to out not same. he Wednesday he Is day night. Then on does pun- he order and not guilty three the court’s violations of contempts? ishable for three be to illustration would argument applied counsel’s
“Yet Monday and garage on that if John Doe took the car out of the month continuously day night drove and until the end of once violating only order then John Doe would be the court’s under punishable only (Parenthetically, and would once. be only, he would argument, counsel’s civil is a say, punishable purged himself, they all because he be at has car.) restoring the greater, punishing him “Is one to be rewarded less brazen order? more violation of the court’s Is thus the law illogical ingeniously be of it an so construed as to make set punish rules to small and condone substantial ones? violations order “But maintain in counsel that there is difference an doing an restraining doing directing an and act order di- illustration, of an act. For let us assume that John Doe is custody return rected his car to of the sheriff and Chattanooga Monday he the car to and to re- takes refuses himself subjects it. He violated the order and turn has court’s he he that violation. If on Tuesday returns jail he may punished by twenty days $200 and be fine. If it, Chattanooga day the car to refuses each return takes contention would mean that John Doe could counsel’s by imprisonment twenty $200 fine. punished only days and day a command to return car Yet each the court’s order is goes day Doe refuses. Assume that John John- Doe finally car and with triumph the world returns around obeyed have order, that T have court’s I the announcement jail twenty days in punish $200 with car, returned me *13 if I punished been had returned car fine—I would have' so the me no more.’ immediately you punish can go court impotency? Must the the reduced “Is court order issuing another day process*of each through the absurd by the court same act ordered commanding the John Doe to do abortive day—and made futile and previous this act again passed that he has being even inform Doe able to John would for form perversion of substance another order? This an punish contempt power tend the court to to make main- than courts rather destroy respect for the instrument to tain it. charged one viola- be more than whether or not there
“But each look at item of order, let the second tion of court’s us in- day each the defendant on charged count. It there that is determination impeded the court terfered with and page 171, on Bradley v. case. impede tended to anything . did which said: ‘Whoever . contempt.’ committed justice . . administration of im- day defendant each that charged in each count “It is jurisdiction. by keeping the child out peded the court con- day the court could have day Each the court sits. Each day pending case. Yet each sidered and determined kept day defendant Each prevented by defendant. administration of with the defendant interfered away, child on by the of the defendant impeded act the court is court. If impedes If the act of defendant contempt. Monday, that is a just contempt another as much Tuesday, court on again spat upon Monday and spat upon judge if on he with court and If comes into interferes judge Tuesday. one can days, on each of 238 administration of the court separate contempts? not committed 238 that he has claimed but jurisdiction for stays safely days, Yet if he out can impedes nevertheless, daily court, daily act, he his or number of distance reduce the his offenses the illustration of merge them into one? petition contend shows
“Counsel for defendant there- and that it of the defendant was continuous the conduct contempt. only one fore shows only one can
“If continuous conduct constitute Mexico, away child spirited have defendant could then return kept by him, he could leaving her there but still then,
453 say this court and I ‘Yes, have taken away and, the child ana keeping away her forever—you and will punish do so can me only twenty days for and discharged $200 and when I have that punishment I can and keep will her away, forever and there no further you can impose upon doing me for so and I can henceforth flout the impunity.’ law and the court with
“I do not overlook by fact a remedial order additional the court can direct him to held until be the child is returned punitive but such is not in nature a punishment for con- temptuous acts.
“Now, say? what do the authorities The court has and read considered only the decisions cited counsel but also other cases.
“In the of Dahlonega case Graham v. Mining Gold 71 Co., 296, it charged Ga. continued permanent a diver- sion of the running waters stream through complainant’s a land had been made a opened means of ditch by defendants. The day court said ‘Each that this diversion continues ais fresh trespass.’
“Under case the act just of defendant was continuous as is contended by present counsel yet in the court case, said day there each trespass. continues is a fresh tres- Is a pass against private property trespass different from a against the court?
“In the case of Butler v. Mayor, etc. Thomasville, 74 Ga. there 570, enjoin was an action the running of a sewer pollution the continuous water of a stream. case said ‘An court action may brought day each nuisance continues.’
“In the case of State, Harris v. 193 109, page Ga. on 118 Supreme Court said 'The courts this State and the text- recognized writers have single that a act may or constitute two separate more offenses.’
“And in the case of City Tucker v. 122 Marietta, ‘Municipal court held: corporation has authority, under general welfare in charter, pass clause its pro- an ordinance hibiting the keeping intoxicating liquors purpose unlawful A sale. conviction under such an on ordinance one liquors keeping same conviction for bar to day is no a day.’ purpose subsequent a on charged App. 573, defendant was “In Martin v. 73 Ga. operat- maintaining and keeping, in 15 with the offense of counts instant case ‘In the ing lottery. page said a On the offense alleged commission of where accusation made days different operating lottery on 15 counts proved essential element to be day alleged in each an count ac- particular count, the be had before a conviction could charge did not here drawn cusation the form which it was *15 any two day common general a for was no one offense, there a particular offense; and where charged counts but each count as punishments count, such is convicted on each 15 defendant may for a misdemeanor be inflicted.’ 74 v. of Smith “See also to the same effect the case (3). 777 Superior v. Court Aquatic “In Club the case of Solano (131 it was held County, 874), Col. Pac. Solano service, petitioner operating ferry enjoined where from its was con- although continuous, operation separate days, three punished. separate might separately be contempts which stituted proposition which only other opinion In its the court said ‘The petitioner that, though merits consideration is the contention separate upon violations were continuous and covered its acts single punish only for a con- days power had the the court could petitioner here tempt. Manifestly, law, if such be operate its free to punishment for and then be suffer act one appeal from determination on the ferry only until final not determi- injunction but until final temporary granting order permanent injunction, should appeal from the nation of the trial. But conclusion injunction upon the an follow such law.’ such is not the State upon largely cases of rely for defendant
“Counsel Snow, In 17 So. re King (La.), v. ex rel. Schoenhansen 274. 120 U. S. saloon, operating from King King, enjoined
“In case nights. Eight eight rules kept open saloon rule days of ten on each penalty against him, and a taken were it reversed appeal him. was imposed against On was punished opinion once. only held he be its was could period competent, during the the court said at time 'It was injunction to saloon, plaintiff in opening for the contempt.’ penalty call on the court to inflict the bar, penalty “In could the court inflict the the case at how that he upon petition Kenimer? The shows was defendant available. thus penalty continued: ‘The King
“In case the court was sufficed, inflicted would and if the offense doubtless have again until evil repeated, penalty might be inflicted checked.’ say
“I con- penalty that how could the be inflicted in the tinuity only contempt? act it one Can the made im- up contempts simply divide it into it several because has then posed punishment time? so, for the act to a certain If validity long there can be in the contention no that so contempt. only continues it is one and one act “In means King says: case further ‘The law the court punishment prevent repetition, for the offense at the outset to its repetition.’ afterwards its
“How can any repetition there if on- the continuous act is ly long one act so as it continues? *16 punished
“How can the contemnor be is at the outset if he not within jurisdiction the the outset? can court at the How jailed he be at the prevent repetition outset to if he fled a has jurisdiction the a bounty the court? he to be offered Is continuing contemptuous conduct? apparent logic,
“Isn’t it that the decision Louisiana is without say applicable and to the only least that it when con- is the present temnor is punished to be at the outset? case, apparent
“As to the Snow are clearly there several clear present from the distinctions case. The most fundamental (and which is that in that case a criminal case it is and not contempt) particular one for construing court was a crimi- required continuity nal statute which a of status. In other forbade certain words, statute order act, a continuous and in be guilty violating to that law the act had to be carried with is, some continuousness. that case the said ‘It a inherently, offense; consisting continuous and not an offense help of no is, therefore, isolated act.’ The Snow case an deciding present case. impelled the conclusion
“Upon authority reason I to am quash merit. motion to without is the Demurrer. “Ground One of “By ground petition shows that this is contended that January 28, 1949, has violated the order defendant not Durwood charged Dudley Cook and the reason that said order dates Pye returning with the on the responsibility of child of visitation and not the defendant. petition Pye
“The as officers of shows that said Cook said merely charged duty 'seeing court were with the Kenimer accompany child them was returned.’ It directed to return during They at times said visits. ordered all were not to only to they the child but to that it returned. were see If were accompany during visits, Kenimer said at all who times they give alle- except to see return Kenimer? the child To gations de- petition contended construction give warped fendant would be a construc- and unreasonable language petition. to the said in case tion As it was (a case): v. State, Evans 'The weight give objections any court is not inclined technical more juris.’ they are entitled to than strictissimi “Ground the Demurrer Two of petition al- ground “This contends shows that jurisdiction leged keeping beyond and removal of the child contrary of this court not was not at time January 28, appears order of 1949. It clear to me that return order the child’s at certain time on a certain directed appears date. It that whether directed also clear the order attorneys child, Kenimer or his to return the Kenimer did prevented Pye seeing return the child and that from he petition charges child was returned. To me the so clear respect the order in hardly violation of merit dis- cussion. *17 Three
“Ground of Demurrer ground (3) been “This has treated of the discussion quash. motion to
“Ground of the Demurrer Four ground petition alleges “This asserts that the nowhere that de- alleged fendant had actual have notice of the order been violated. allegations showing
“If the sought defendant procured upon order the court, then it, it and acted exercised privileges granted by advantage it, it and took are knowledge sufficient to had actual show that the defendant order, then any allegation I fail to see had how that he knowledge actual anything pe- would add of substance to the (See 180). tition. Evans v. 69 Ga. 178,
“Ground Five Demurrer “The contention ground been 5 of the demurrer has suf- ficiently covered, quash. in the. discussion of the motion to
“Ground Six of the Demurrer “Ground 6 of the challenges demurrer sufficiency of petition upon the basis that the contempt alleged is a con- civil tempt, and that purged the defendant has by having himself sur- ,(cid:127) daughter. rendered his say
“To that one can violate the court’s order and obstruct justice impede the administration of the court and then at will and leisure return and say T have obey decided to returning court’s order now the child and nothing there is you can do about it longer because I ám no violating the order’ I is, believe, clearly demonstrative falsity conten- of this As said tion. in Carson v. Ennis, 146 726, appar- “It is ent seeking relator is not to enforce any made order protection private for the or enforcement of any right, but punish alleged disrespectful continuous and conduct towards wilfully disobeying the court in the court’s order.’ “See also Alred v. Corp. Celanese (Ga.), 54 S. 2d, 240, E. good discussion difference between civil and criminal contempt. Seven
“Ground of the Demurrer ground charges of the demurrer petition “This prayer to induce the court seek to violate paragraph 9, section Georgia, article Constitution of prohibits which ex- and the infliction of cessive fines cruel and punishment. unusual petition only shows that “The seeks such *18 458 a criminal for penalty by law. The maximum
is authorized fixed contempt is law. ground is in of demurrer.
“There no merit 284. State, 60 Ga. 298; Whitten v. v. State, “See 47 Ga. Plain Eight the Demurrer “Ground of motion in discussion ground “This been treated the has quash to and without merit. is quash the is, therefore,
“It
the motion to
and
ordered that
ground thereof
every
and each and
demurrer of the defendant
hereby
be and the
are
overruled.”
same
may
a
transaction
be holden
One answerable for
carved
legally
nature which can be
contempt of whatever
offending. Therefore, when the citation
out of his entire
separate
defendant Kenimer contained
contempt against
the
particu-
days
separate
offendings
separate
the
counts of
oc-
offending
fact
each
congruous offendings,
lar
if the
can
days
great
a
number of
number or
consecutive
curred on a
as
proof
punished
be
not,
proper
thereof,
citation and
upon a
pun-
one
subject to only
offender is
separate contempts, but the
days
jail, and
$200
maximum fine of
and 20
in
a
ishment of
just punishment for all
by the
as a
accepted
must be
court
such
nothing
be
short
flagrant offendings, the
would
situation
of such
(37
State,
v.
See Martin
of calamitous.
present
the
411).
case like the
one where
2d,
For in a
S. E.
separated
one of the
the minor child to
court has awarded
contemptuously
wilfully and
the father
mother,
parents,
beyond the
the child
court
takes
the order of the
violates
foreign
country,
and even into
jurisdiction
court,
law
power
do what
lacking in the needful
the'
would
legally gathered
whom it has
under
protect those
requires
it,of
think
the court
I, therefore, do
not
sheltering wings.
its
quash
the demurrer.
overruling the motion
erred
it
ruled:
“In
(2),
The imposed being several all within the statutory 460 think
powers offenses, inflict such I do not of the court to aggregate duration of that this court is concerned with imprisonment Indeed, under amount of the fine. or the I think Constitution and the of this State do statutes imposed right court interfere has the with sentences (6) McCullough v. this case. 11 Ga. (76 393). I would, think, put E. do S. To so Nation. among solitude of unenviable the courts position are above mentioned in accord with those The authorities to. Hart are referred jurisdictions, some of which now other (109 (7) 582), E. held: Commonwealth, v. Va. S. uniformly Appeals by Supreme held Court of 'Tt has been [forbidding the Constitution provisions in section 9 of that the same which have remained the punishments], cruel unusual Rights Virginia Bill they originally adopted were as impose upon limitation 1776, must be construed to no prescribe by quan- statute the right to determine legislative adequate punishments legislature; deemed tum of only upon punishments, imposed limitation so the mode of only prohibited such constitutional punishments being such pro- regarded cruel unusual when provision as were such *20 adopted namely, 1776, was in such vision of the Constitution torture punishments lingering or death—such bodily as involve by as, punishment barbarous; example, as are inhumane drawing rack, by quartering, leaving body hung the the public view.” chains, gibbet, exposed or the 555, Raymond States, Appeal v. United 25 Cases C. In D. of the be the full extent the given law, it “To as 560, said: was severity, any particular case, may be an act expression is, of present have been but case; indeed it would seem to in the as punishment prohibited and unusual such is this is not cruel extent as nature law. much the fundamental Not so although it that makes it cruel and punishment unusual; is distinguish from many may severity difficult to it cases cruelty.” States, (2d) 608, 611, 54 F. was said:. United v. Scala of- properly separate convicted of the three appellants were
“If each upon in the be no merit contention can fenses, there imprisonment imposed. penalty maximum was conviction
461
If
penalties
the several
imposed were within
power
the statutory
to inflict
several offenses,
Ap
the Court of
peals is not concerned with the aggregate duration of
im
prisonment or amount of the fines.
[Citing]
penalties,
Such
whatever the aggregate,
transgress
do not
in
constitutional
upon
hibition
‘cruel
punishment.’
and unusual
See
v.
Badders
United States,
391,
240 U. S.
367,
36 S. Ct.
706;
60 L. Ed.
Ebel
ing Morgan,
v.
237
625,
U. S.
710,
1151;
35 S. Ct.
59 L. Ed.
Howard
Fleming,
v.
This' Rogers court held in (76 v. State, 11 Ga. (2) S. E. 366), repeated that “It is well settled, -by decisions of Supreme Court and of court, this that where im- the sentence posed by the trial court is within the limit statute, fixed it will not be set granted aside new trial ground on the imposed that the sentence is excessive and cruel and unusual, and, therefore, in violation of the Constitution article 1, paragraph (Civil 6365).” section Code, §
For the reasons above stated I dissent from judgment reversal.
32835. Huff
v. The State.
MacIntyre,
instruction,
P. J. 1. “The
alone,
‘a confession
uncorroborated
by any
evidence,
justify
conviction,’
other
shall not
erroneous,
was not
misleading,
confusing,
or
giving
in connection therewith
degree
rule to
corroboration,
test the
jury
or
judges
were the
sufficiency
excerpt
quotation
corroboration. The above
is a
from the last sentence of section 38-420 of
Code.
This entire sec
*21
given
charge,
tion was
and if
desired,
additional
instructions were
timely
proper
request
therefor should have been made.” Will
(34
2d, 854).
iams v.