190 N.C. 133
N.C.
1925
Adams, J.

Pеnding the appeal, and immediately before the argument, the defendant filed a written motion for a new trial on the ground of newly discovered evidence. The motion, of course, must be denied. In S. v. Lilliston, 141 N. C., 857, it is said that because the Court has no jurisdiction it has never entertained a motion of this kind, and that by uniformity of practice and decision the point has been definitely settled against the defendant’s present contention. There are many cases to this effect. S. v. Flood, post (per curiam); S. v. Hartsfield, 188 N. C., 357; S. v. Williams, 185 N. C., 643, 664; S. v. Jenkins, 182 N. C., 818; S. v. Ice Co., 166 N. C., 403; S. v. Arthur, 151 N. C., 653; S. v. Turner, 143 N. C., 641; S. v. Register, 133 N. C., 747; S. v. Council, 129 N. C., 511; S. v. Edwards, 126 N. C., 1051; S. v. Rowe, 98 N. C., 629; S. v. Starnes, 97 N. C., 423; S. c., 94 N. C., 973.

In reference to the exception’s concerning the admission of evidence, it is to be noted that this Court has frequently approved the withdrawal of incompetent testimоny and the judge’s direction to the jury not to consider it. ‍‌​​​‌‌‌‌‌​​‌​‌​​​​‌‌‌​​‌​‌​​‌​‌‌​​​​‌​​​‌‌​‌​‌‌​‍“It is undoubtedly proper and in the power of the court to correct a slip by withdrawing improper evidenсe from the consideration of the jury or by giving such explanation of an error as will prevent it from misleading a jury” — Ruffin,, C. J., in McAllister v. McAllister, 34 N. C., 184. See, also, additional citations in S. v. Stewart, *136 189 N. C., 340. But in the case before us tbe learned judge did not аdmit incompetent evidence; if there was inadvertence or error, it was that of the witness. His Honor was alert and vigilant to see that any remark prejudiciаl to the defendant or even susceptible of misconstruction should not be considered by the jury. He carefully restricted the evidence to the question of Bullоck’s guilt and gave an explicit instruction that there was no suggestion that the name of any other defendant was on the list of names furnished by Bullock to Dodd. If 'the trial judge may correct his own inadvertence a fortiori may he correct the inadvertent or improper statement of a witness upon the stand. If it were otherwise, orderly procedure and the administration of justice would be well nigh impossible. 38 Cyc., 1315; Jones on Evidence, sec. 815; S. v. Miller, 75 N. C., 73; S. v. Spivey, 151 N. C., 676, 681.

The remaining exception relates to the constitutiоnal inhibition against cruel or unusual punishment. It is provided that upon conviction of the crime denounced in O.. S., 4210, the offender shall suffer imprisonment in the State’s prison for not less than five nor more than sixty years; and under this provision and by 'virtue of this authority the defendant was sentenced to hard labor in the penitentiary for the determinаte period of thirty years. Other defendants ‍‌​​​‌‌‌‌‌​​‌​‌​​​​‌‌‌​​‌​‌​​‌​‌‌​​​​‌​​​‌‌​‌​‌‌​‍received sentences ranging in duration from six to ten years; and the defendant insists that the quantum of punishment meted out to him is discriminatory and a palpable violation of the constitutional provision. There is evidence, however, tending to show that the maim charged in the indictment (the most aggravated defined in the statute) was maliciously inflicted by the defendant; and this, no doubt, was considered by his Honor when judgment was pronounced.

In 1688 the Bill of Bights (1 "Will. & Mar., sess. 2, c. 2), after reciting the various ways in which James II had infringed upon the liberties of the subject, declared in section 10: “Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Bidge’s Constitutional Law of England, 9. The Federal Constitution contains a similar provision, the Eighth Amendment substituting the word “shall” for the word “оught.” In the State Constitution of 1776 the language is, “That excessive bail should not be required, nor excessive fine's imposed, nor cruel nor unusual punishments inflicted.” Declarаtion of Bights, sec. 10. This section, with a slight chango of phraseology, appears in the Constitution of 1868, Art. I, sec. 14.

In Wilkerson v. Utah, 19 U. S., 130, 25 Law Ed., 345, it is said, “Difficulty would attend the effort to define with exaсtness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted”; and in Weems v. United States, 217 *137 U. S., 349, 54 Law Ed., 793, Mr. Justice McKenna remarked, “What constitutes a cruel and unusual punishment has not been ‍‌​​​‌‌‌‌‌​​‌​‌​​​​‌‌‌​​‌​‌​​‌​‌‌​​​​‌​​​‌‌​‌​‌‌​‍exactly .decided.” To the same effect is the language offilir. Justice Beads: “What the precise limit is cannot be prescribed. The Constitution does not fix it, precedents do not fix it, and we cannot fix it, and it ought not to be fixed. It ought to be left to the judge who inflicts it under the circumstances of each case,” etс. S. v. Driver, 78 N. C., 423, 429. In respect to the measure of punishment regard should always be had to the circumstances developed on the trial, since the presiding judge usually has opportunity to acquire accurate information. S. v. Pettie, 80 N. C., 267.

As we have indicated above, the maximum punishment prescribed by the statute is imprisonment ‍‌​​​‌‌‌‌‌​​‌​‌​​​​‌‌‌​​‌​‌​​‌​‌‌​​​​‌​​​‌‌​‌​‌‌​‍for a term not еxceeding sixty years. With respect to such statutory provision, in Weems v. United States, supra, it is said: “We disclaim the right to assert a judgment against that of the Legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked. Then the legislative powеr is brought to the judgment of a power superior, to it for the instant. And for the proper exercise of such power there must be a comprehension of all that the Legislature did or could take into account — that is, a consideration of the mischief and the remedy. However, there is a certain subordination оf the judiciary to the Legislature. The function of the Legislature is primary, its exercise fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judiciаl conception of its wisdom or propriety. They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge. We have expressed these elementary truths to avoid the misapprehension that we do not recognize to the fullest the wide range of power that the Legislature possesses to adapt its penal laws to conditions as they may exist and punish the crimes of men according to their forms and frequency.”

In S. v. Manuel, 20 N. C., 144, 159, 161, Judge Gaston expressed a similar opinion: “The right of the Legislature to prescribe the punishment of crimes belongs to them by virtue of the general grant of legislative powers. It is a power to uphold social order by competent sanctions. Unless they be restricted, and so far only as they are restricted by constitutional prohibitions, it is a рower in the Legislature to accomplish the end by such means as in their discretion they shall judge best fitted to effect it. . . . Now, there are great, if not insuperable, difficulties in a court undertaking to pronounce any fine excessive which *138 the Legislature has affixed to an offense. It must be admitted that the language of this section of the Bill of Rights is addressed directly to the judiciary for the regulation of their conduct in the administration of justice. It is the courts that require bail — impose fines — and inflict punishments — and they are commanded not to require excessive bail — ■ not to impose excessive fines — not to inflict cruel or unusual punishments — and it would seem tо follow that this command is addressed to them only in those cases where they have a discretion over the amount of bail, the quantum of the fine, and the nature оf the punishment. No doubt the principles of humanity sanctioned and enjoined in this section ought to command the reverence and regulate the conduct of all who owe obedience to the ‍‌​​​‌‌‌‌‌​​‌​‌​​​​‌‌‌​​‌​‌​​‌​‌‌​​​​‌​​​‌‌​‌​‌‌​‍Constitution. But when the Legislature, acting upon their oaths, declare the amount of bail to be required, or specify thе fines to be imposed, or prescribe the punishments to be inflicted in case of crime, as the reasonableness or excess, the justice or cruelty of these are necessarily questions of discretion, it is not easy to see how this discretion can be supervised by a co-ordinate branch of the governmеnt. Without attempting a definite solution of this very perplexing question, it may at least be safely concluded that unless the act complained of (which it would be аlmost indecent to suppose) contains such a flagrant violation of all discretion as to show a disregard of constitutional restraints, it cannot be pronounced by the judiciary void because of repugnancy to the Constitution.”

The judgment pronounced being within the limits of the law was also in the discretion of the presiding judge, and is not subject to review in this Court. S. v. Miller, 94 N. C., 904; S. v. Woodlief, 172 N. C., 885.

We find

No error.