106 N.C. 714
N.C.
1890
Davis, J.

after stating the case: The defendant invokes the protection guaranteed by Art. I, § 14, of the Constitution, which forbids excessive bail and the imposition of excessive fines or cruel and unusual punishments.

It is hardly possible, by any fixed or arbitrary rule, to apportion, with exact precision, punishments to offenders, for there are almost as many shades of guilt, and of aggravation or mitigation, to be considered in passing sentence as there are offences committed. In the chapter on crimes (The Code, ch. 25), it will be found that, in a large number of cases, limits are imposed, sometimes both a maximum and a minimum, and sometimes only a maximum, within which the discretion of the Court is confined.

There will be found, also, a large number in which the punishment is by fine, or imprisonment, or both, in the discretion of the Court.

This is a legal and not an arbitrary discretion, and must be exercised within the limits of the Constitution and the laws. As was said in State v. Driver, 78 N. C., 423 : “ What the precise limit is cannot be prescribed. The Constitution does 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, and it ought not to be interfered with, except when the abuse is palpable.”

In State v. Petlie, 80 N. C., 367, in which an imprisonment in the county jail for two years for an aggravated assault *717 and battery, in that case committed by the defendant on his wife, was held not to be a violation of the Constitution, the Court said: “There being no specific punishment provided by statute for such offence, it was the duty of the Judge, in the exercise of his legal discretion, to fix upon the term of imprisonment suited to the case, without restriction, save that in the Constitution, which forbids ‘cruel or unusual punishments’ to be inflicted.”

The facts set out by his Honor in the case on appeal, exhibit such wicked conduct on the pait of the defendant as to call for exemplary punishment adequate to correct him, and to deter others from offending in a like manner. It appears, from the testimony of the physician, that the defendant owed it to a kind Providence, which was not on the side of his guilty intent, that the wound was not fatal, when the punishment might have been capital

The-only circumstance offered in mitigation was the vulgar epithet applied to him by the woman. Whatever might have been the sting inflicted by her language, it appears from the facts that she was his partner in'the crime of fornication and adultery, and however great the provocation might have been, under other circumstances, he wots not less in fault nor less excusable than she.

As, since the act of 1887, the judgment is not vacated by the appeal, and it cannot affect the sentence in this case, we may be permitted to say that, so far from transcending the reasonable boundary of just punishment, we think his Honor was safely and humanely within the limit allowed by the reasonable exercise of his discretion.

Affirmed.