*1 eye- knowledge defective ducting alleged of his himself as injuries. proximate cause sight his and that such was using the negligent in streets plaintiff Whether not the or not the unaided, sidewalks Thomasville negligence discovering negligent in not plaintiff was thereof, questions consequences avoiding Chapman allegations petition. of the jury under for a p. 210. 895, Am. Jur. also 38 568. See Macon, 566, 55 Ga. § against defendant of action good cause petition states & Wright Lopez Inc. any ex- expressly case abandons plaintiff in error in each overruling special demurrers.
ceptions to general demurrer of Southern overruling The court erred in Telephone Company. and Telegraph Bell general demurrer overruling err The court did not Wright Lopez & Inc. Telephone Tele- Judgment Bell reversed as Southern (Case 33296). graph Company No. Lopez (Case No. Wright Inc.
Judgment as to & affirmed concur. Sutton, Worrill, J., C.J., WEBB, GEORGIA, ex OF rel. v. STATE 33216. KENIMER Solicitor-General. Rehearing 27, 9, 1951. February January
Decided denied Lindsay, Harris, Camp Camp, & Dor- McCracken, & Chance sey in error. Hall, plaintiff & Hall, William contra. Webb, Solicitor-General,
Paul Atlanta Judicial J. The Solicitor-General Worrill, of the State of on Oc- Circuit, acting for and behalf 10, 1949, filed a citation tober Superior judge A Court M. Kenimer Jr.
Charles order 10, 1949, issued his on October Circuit, Atlanta Judicial and rule on citation; 1949, nisi said 21, on October de- fendant filed his rule, answer to said citation and and on October 22, 21 and the said came on for before the said judge. On November entered *2 finding the defendant guilty him and in of court on each of counts, punished 238 and ordered that he be by imprisonment jail county the common on days 5 \ each count and pay that he fine count, $50 of on each period imprisonment beginning be served qonsecutively, days with 5 on days the first and 5 consecutively count periods thereafter, 237 and requiring that" the defendant pay 238 $50 fines each. judgment The for contempt of court was for previous violation aof order of the to defendant’s court.relative child, involving custody. its day The court concluded that each separate-and constituted a distinct offense of and found the defendant effect guilty contempts, provided of 238 and consecutively the sentences run jail. confinement in The petition, upon which a rule nisi issued for the defendant why show cause he adjudged should be in contempt of court to, was demurred was overruled, excepted was not to. The excepted judgment defendant to the said court, of the trial when the case was here rulings before this held that court of the trial on the demurrers became the law the not, correct unexcepted or because it was to, and the judgments part , court were affirmed in and reversed part with direction. The court directed that im- the sentence posed on 15, 1949, November be set aside and hearing without further evidence that the defendant be resentenced not incon- sistently opinion. with the judgment The court set aside grounds on the that it was in contravention of I, Article Section 1, Paragraph IX (Code of the State Constitution of 1933, 2-109) in that cruel, unusual, § and ex- cessive. The trial court resentenced the defendant May 31, 1950, imposed and in jail a sentence of 2 days each on the 238 counts and a fine of $20 on each of said counts, jail making year, sentence 1 months, 3 and 21 days, $4,760. a fine The excepted to that exceptions. on the case is here those error plaintiff contends that the sentence excepted Paragraph IX I, Section Article
to is in contravention of previous reason that same the State Constitution the Constitution. The sentence in conflict with Atlanta Judicial Superior Court of the error contends power it has an “inherent court, that Circuit is a constitutional contempts,” criminal contempts, especially define abridged taken be contempts can not right “the define only before action,” question now away legislative etc. May the order of whether or not determination is court for confinement in defendant to 1950, sentencing the $4,760 pay a fine of and to year, 3 months I, Paragraph IX portion of Article Section violation that cruel and unusual Constitution, provides of the State prohibited. case was When this and excessive sentences judgments court, the of the trial time before this first part with direction part and reversed were affirmed *3 Kenimer v. State appears in its decision of as (59 pages 446 296), E. and on and 447 this 2d, S. Ga. questions to the difficult now come most held: “7. We punishment the is an abuse inflicted case, in the and unusual to contravene and so cruel judicial discretion Paragraph IX of the State Constitution. I, Section Article illogical say if the to that even may somewhat While it seem legal and individual count on each is meted out punishment cruel and excessive, unusual, is the cumu- total proper the sum be judgment can and effects of the not avoided lative result rendered but one pieces. The court dividing it into be, the would fine effect of a and knew what years. may It be jail three and confinement over $11,900 nearly logical, say that more to the logical, at least sentence or circumstances, excessive under the count was individual on each taken into effect is consideration. We cumulative their when contrary spirit to the of the law of the sentence is think that against policy. punish- its The law limits the State and contempt twenty maximum of $200 single to a ment for malicious, how how and how jail, flagrant, matter no might respondent If contempt be. had the act of iniquitous day punishment line the first his could caught at the State been jail $200 fine confinement exceeded a not have twenty despite days, fact that he had the same overall de- sign purpose he as would have had if he had succeeded thirty-seven purpose
his and defied hundred and two days. multiple more in this case seems include sentence to punishment single design. not cumulative for a We do say judge imposed because he sentence for error_ order, violation court’s technical under law we think that but do was excessive contrary entirety. why its Another reason the sentence is spirit to the law of and the law cruel punishments, long and unusual is that sentence con- exceptional. is jail finement in is To say so that it is unusual put mildly. places it primarily Jails are confinement places punishment except cases, methods in a few others, misdemeanor cases and possibly cases and' it but is seldom that misdemeanor required cases a criminal is serve more than jail six months in even under sentences involving more than one misdemeanor. long Such a term inevitably will impair tend respondent. health of the agree we respondent While punish- should suffer some very ment do not we think that the law which he being tried flouting trampling under feet his should be oppressive so dealing and cruel in with him unworthy its as to tend to make it respect respondent charged abusing. We intend no criticism of the trial whose error on such question, by. high a noA^el actuated devotion to the courts lightly and laws which have been so treated the respondent. In such a plane case as this the of observation is sometimes *4 justice the difference between and error. We dare if say that point our of observation were reversed with that of the trial judge and he reviewed the same sentence our too-close-up view by AArouldbe revised him.” contempts
Criminal and civil are distinguishable, but some- separate is times it hard one from the other, and in some cases both are provision elements involved. The of punishment contempt civil seeks to force obedience the court’s order. provision punishment of contempt criminal constitutes punishment involving of fines, imprisonment basis or both. generally of court Wilful authorizes 268 nor un- excessive imprisonment, but both fine and agree reasonable. We do not entirely just and
usual, and that in for we think error, the contention defendant with the of excessive, unusual, and imposed in is the sentence this case here before the case was when cruel. The tenor our decision the trial court under the law of case the is that while separate con- guilty authorized to hold the only culpable one they all nevertheless based on tempts, that Accordingly, coupled intent. there was one there- violations. We and 237 technical culpable intent, other excepted here the trial court all of the sentence of fore hold that for the first offense, the maximum fixed and above over imprisonment and fines in addition thereto amounts totaling remaining equivalent violations the of the technical judicial an maximum offense abuse of discretion of one other I, contravene Article Section cruel and unusual as to so IX Paragraph the State Constitution. affirmed on the trial court is condition trial remittitur from the
upon
receipt
of the
this
excepted to
court,
court amend
imprisonment
over and
from
sentence all
so
to delete
all
the fines over and above the
above 40
judgment is
$400; otherwise, said
reversed.
sum of
provided by
the whole court as
This case was considered
(Ga.
March
Laws
approved
p.
act
Felton, Gardner
Judgment
on condition.
and Town-
affirmed
J.,
Sutton,
MacIntyre,
concur.
C. J.
send,
P.
dissent.
JJ.,
opinion
I
dissenting.
am the
J.,C.
Sutton,
court,
the record
this case and the law
under
superior
authority
impose upon
proceeding, had the
applicable
such
excepted to.
I
from
now
dissent
the sentence
majority
ruling
judgment of
present
dissenting opinion
my
when
reasons stated
for the
this case
formerly
here. See 81 Ga.
the case was
dissenting.
ruling
I dissent from
made
J., P.
MacIntyre,
appearance
its second
majority in this
by the
given my
dissent when
reasons
court, for the
State, supra); and for
additional
(Kenimer first here
powerless
record
this court is
under the state
reason
*5
imposed.
McCullough
shall be
See
to direct what
(76
(6),
v.
S. E.
Attention
State, 11 Ga.
penalty
fact that
left
especially called
and the penalty
trial
judge,
statute to the discretion
prescribed by
statute,
such
exceed
limits
does not
being
See
statute is not attacked as
unconstitutional.
Whitten
(2).
State
Decided denied Frank Gnzzard, Frank A. Bowers, plaintiff in error. James R: Venable, Respess Hubert C. Morgan, J. Jr., L. Brown, R. Walter contra. Garmon, doing J. Carl Motors, business as Garmon
Worrill, Hall, doing sued C. M. business as Hall T. Motors, and Jesse damages express Garmon for breach of an warranty of title to a automobile, allegedly certain sold Jesse T. Garmon plaintiff. agent Upon of Hall Motors stipulated it was in question that title to the automobile Garmon, plaintiff, had failed and that Carl had had person purchased reimburse the it from who him. plaintiff testified that he had had occasion to do business buying
with the defendant Motor Company, selling auto- long period prior purchase mobiles time to the