Vigouroux v. State

101 So. 576 | Miss. | 1924

Anderson, J.,

delivered the opinion of the court.

Appellant was charged and convicted in the circuit court of Jackson county of the unlawful sale of intoxicating liquors, and sentenced to pay a. fine of five hundred dollars and ninety days’ imprisonment, and, in addition, to execute a bond in the sum of one thousand five hundred dollars with sufficient sureties to “keep the peace and be of good behavior” for two years from the date of the judgment; such bond to be approved by- the clerk of said court. From that judgment, appellant prosecutes an appeal to this court.

The only question discussed which we deem of sufficient importance to call for an opinion in this case is that the judgment of the court violates section 28 of the Constitution, which prohibits the infliction of cruel or inhuman punishment, or excessive fines. It is argued that the 'judgment of the court, imposing a fine of five hundred dollars and ninety days’ imprisonment, and in addition requiring the giving of said bond, was so excessive and burdensome as'to amount to cruel and inhuman punishment. The statute (section 1561, Code of 1906; section 1323, Hemingway’s Code) authorizing the bond in question is in this language:

“Every court before which any person shall be con-meted of an offense less than a felony may, in addition to the penalty prescribed by law, require the convict to enter into bond in a reasonable sum, with or without sureties, to keep the peace and to be of good behavior for any time not longer than two years, and may order him to stand committed until such bond be executed; and for any breach thereof it may be proceeded on b}*" scire facias as in other cases.”

It will be observed that the maximum imprisonment under this statute is two years. We know of no authority in this state bearing on this question so far as misdemeanors are concerned. Ex parte McInnis, 98 Miss. 773, 54 So. 260, in which the constitutionality of this statute was involved, was a prosecution for a felony — embezzlement. The authorities elsewhere discussing this constitutional provision generally hold that its purpose is to prohibit any cruel or degrading punishment not known to the common law; punishments that had become obsolete when our government was established; punishments so disproportionate to the offense as to be shocking to the public conscience, such as torture, requirement that the prisoner be dragged to the place of execution, that he be quartered, that he be burned alive; punishments that are degrading, such as the whipping post, the pillory, capital punishment for forgery and larceny, and the like, burning at the stake, crucifixion, breaking; on the wheel, and the like; that this constitutional pro-, vision was not directed so much against the amount or duration as against the character of the punishment; that a statute or sentence of a, trial court will not be set aside on the ground that the punishment which it provides for is unusual in degree, save perhaps in very extreme cases, see 8 A. & E. Ency. of Law (2 Ed.), pp. 436 to 440, inclusive, and cases cited in notes.

By referring to the holding of the courts elsewhere we do not mean to approve all that has been said. We do hold, however, that the punishment in this case, which cannot continue longer than two years, is not violative of the provision of the Constitution in question.

We find no merit in the other assignments of error.

Affirmed.