Whitten v. State , 47 Ga. 297 ( 1872 )

McCay, Judge.

There can be no good reason for saying this verdict is not supported by the evidence, other than the belief of the plaintiff in error, that the State’s witness1 was not worthy of credit. It would, in our judgment, be an infringement by the Court on the province of a jury, to undertake to say that they ought not to have believed the witness. The jury ai’e the judges of the credibility of the witnesses, in a special sense. They see them, they hear them. The eye, the tone, the manner, the expression of countenance, all speak, and bear testimony, pro and con, that cannot be got into a brief of the testimony or bill of exceptions. In this case, too, there were many witnesses to the good character of the witness. True, the defendant’s witnesses were the nearest neighbors of the witness. But it often happens, in this country, that the people, and especially the business men of the county town, know people better than those living far nearer them.

We do not think that the section of the bill of rights prohibiting excessive fines, etc., applies- to circumstances such as this. Here the Legislature has given the Judge discretion, and he has acted within the limits fixed by law. We greatly doubt if it be the province of this Court to interfere with this discretion, under any circumstances. Iiow is this Court to enter into the motives-of the Judge? The object of punishment is to prevent crime. Perhaps the circumstances of the community may require a Judge to put heavy penalties on convicts, and crime may be specially prevalent, and it may be to the public interest to startle those liable to guilt. The prisoner has violated the law. The penalty fixed by law is greater than the Judge has assessed. His discretion has lessened it, though not so much as his counsel thinks it ought to have done. But how are we to know what the state of public morals in Randolph county requires ? Indeed, if this man is guilty, the punishment is light enough; and if public opinion in Randolph county thinks it too heavy, it may be that opinion, needs to be educated into a greater horror of crimes like this.

Whether the law is unconstitutional, a violation of that article of the Constitution which declares excessive fines shall not be imposed nor cruel and unusual punishments inflicted, is another question. The latter clause was, doubtless, intended to prohibit the barbarities of quartering, hanging in chains, castration, etc. When adopted by the framers of the Constitution of the United States, larceny was generally punished by hanging; forgeries, burglaries, etc., in the same way, for, be it remembered, penitentiaries are of modern origin, and I doubt if it ever entered into the mind of men of that day, that a crime such as this witness makes the defendant guilty of deserved a less penalty than the Judge has inflicted. It would be an interference with matters left by the Constitution to the legislative department of the government, for us to undertake to weigh the propriety of this or that penalty fixed by the Legislature for specific offenses. So long as they do not provide cruel and unusual punishments, such as disgraced the civilization Gf former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.

Judgment affirmed.