Felton, J.
1. We are faced at the outset with the necessity to determine the effect of the rulings on the demurrers and motion to quash. If the demurrers and motion to quash properly raised the question whether the petition charged only one act of contempt or two hundred and thirty-eight, the rulings thereon became the law of the case and this court is precluded from further consideration of the question. We think that the demurrers and the motion to quash did properly raise the question and that the rulings, unexcepted to, became the law of the case. The court had jurisdiction of the parties and subject-matter. The preliminary paragraphs of the petition state the history of the case against the respondent and the facts related therein clearly show what is contended to be the truth of what happened. The demurrer and motion were directed at the petition as a whole and not merely to each and all counts. The petition as a whole showed that under the facts alleged there was either just one act of contempt or there were two hundred and thirty-eight. The demurrer was not a speaking demurrer as a decision on this point was necessary without consideration of any extraneous facts. Of course the facts alleged had to be proved to authorize a judgment but that is beside the point on [445] the question under discussion. The rulings in civil cases as to the binding effect of a judgment on pleadings unreversed or not set aside are also applicable to criminal cases. Matthews v. State, 125 Ga. 248 (54 S. E. 192); Griffin v. Eaves, 114 Ga. 65 (39 S. E. 913). Code § 27-1501 does not mean that such a ruling on a demurrer or motion to quash, in a criminal case, shall not be binding as the law of the case if unexcepted to. It simply means that a defendant may show that he is not guilty as charged under the law, including the law of the case, if. the judgments on his demurrers and special pleas are not excepted to. The rulings herein discussed having become the law of the case the information charged two hundred and thirty-eight acts of contempt, whether correctly or incorrectly. The case might be different if the demurrers had attacked the individual counts alone and not the whole petition.
2. The rulings referred to in division one having become the law of the case they were controlling on the judge in his subsequent determination of the motion in arrest of judgment which involved the identical question. Herb v. Wolfe, 75 Ga. App. 20 (1) (41 S. E. 2d, 817).
3. Grounds four through nine of the amendment to the motion for a new trial complain of the admission of various pleadings in the main divorce case and related custody proceedings. These grounds do not contain the evidence referred to but even if they did we do not see how the admission of the pleadings to show the history of the case and not as evidence of the facts contended for by the respective parties could have harmed the respondent insofar as the sole issues of contempt were concerned.
4. In ground ten of the amended motion error is assigned on the exclusion from evidence of the following letter: “Atlanta, Georgia, July 25, 1947. Mr. Charles Kenimer, 195 Beverly Road, N.E., Atlanta, Georgia: Charlie: As I have often times told you I am not divorcing you to marry Wade Senter, and since we have agreed upon the custody of Betty, I hereby promise you that if any time in the future I should marry Wade Senter, then you can have the custody of Betty, and I will not oppose or object to you having custody, if this should happen. I further agree that you may use this letter as evidence in any [446] court, as I again reiterate I will not marry Wade Senter. Yours truly, Muriel Moran Kenimer.” The exclusion of the letter was not error. It had no relevancy or probative value on the contempt issue. There is no complaint that the court refused to consider it in fixing punishment.
5. Grounds of the amended motion eleven through fourteen are mere elaboration of the general grounds and are controlled by the law of the case. The evidence authorized the finding that the respondent was guilty of contempt as charged in the petition, and there was no error in overruling the motion for a new trial on all grounds properly included, which does not include exceptions to the sentence imposed.
6. The court had jurisdiction to impose punishment on each count though the total exceeds the legal limits for one count. Brannon v. State, 21 Ga. App. 328 (94 S. E. 259); Peters v. U.S., 94 Fed. 128 (7) (36 C.C.A. 105); Ex parte A. S. Genecov, 143 Tex. 476 (186 S.W. 2d, 225, 160 A.L.R. 1099).
Free access — add to your briefcase to read the full text and ask questions with AI
Felton, J.
1. We are faced at the outset with the necessity to determine the effect of the rulings on the demurrers and motion to quash. If the demurrers and motion to quash properly raised the question whether the petition charged only one act of contempt or two hundred and thirty-eight, the rulings thereon became the law of the case and this court is precluded from further consideration of the question. We think that the demurrers and the motion to quash did properly raise the question and that the rulings, unexcepted to, became the law of the case. The court had jurisdiction of the parties and subject-matter. The preliminary paragraphs of the petition state the history of the case against the respondent and the facts related therein clearly show what is contended to be the truth of what happened. The demurrer and motion were directed at the petition as a whole and not merely to each and all counts. The petition as a whole showed that under the facts alleged there was either just one act of contempt or there were two hundred and thirty-eight. The demurrer was not a speaking demurrer as a decision on this point was necessary without consideration of any extraneous facts. Of course the facts alleged had to be proved to authorize a judgment but that is beside the point on [445] the question under discussion. The rulings in civil cases as to the binding effect of a judgment on pleadings unreversed or not set aside are also applicable to criminal cases. Matthews v. State, 125 Ga. 248 (54 S. E. 192); Griffin v. Eaves, 114 Ga. 65 (39 S. E. 913). Code § 27-1501 does not mean that such a ruling on a demurrer or motion to quash, in a criminal case, shall not be binding as the law of the case if unexcepted to. It simply means that a defendant may show that he is not guilty as charged under the law, including the law of the case, if. the judgments on his demurrers and special pleas are not excepted to. The rulings herein discussed having become the law of the case the information charged two hundred and thirty-eight acts of contempt, whether correctly or incorrectly. The case might be different if the demurrers had attacked the individual counts alone and not the whole petition.
2. The rulings referred to in division one having become the law of the case they were controlling on the judge in his subsequent determination of the motion in arrest of judgment which involved the identical question. Herb v. Wolfe, 75 Ga. App. 20 (1) (41 S. E. 2d, 817).
3. Grounds four through nine of the amendment to the motion for a new trial complain of the admission of various pleadings in the main divorce case and related custody proceedings. These grounds do not contain the evidence referred to but even if they did we do not see how the admission of the pleadings to show the history of the case and not as evidence of the facts contended for by the respective parties could have harmed the respondent insofar as the sole issues of contempt were concerned.
4. In ground ten of the amended motion error is assigned on the exclusion from evidence of the following letter: “Atlanta, Georgia, July 25, 1947. Mr. Charles Kenimer, 195 Beverly Road, N.E., Atlanta, Georgia: Charlie: As I have often times told you I am not divorcing you to marry Wade Senter, and since we have agreed upon the custody of Betty, I hereby promise you that if any time in the future I should marry Wade Senter, then you can have the custody of Betty, and I will not oppose or object to you having custody, if this should happen. I further agree that you may use this letter as evidence in any [446] court, as I again reiterate I will not marry Wade Senter. Yours truly, Muriel Moran Kenimer.” The exclusion of the letter was not error. It had no relevancy or probative value on the contempt issue. There is no complaint that the court refused to consider it in fixing punishment.
5. Grounds of the amended motion eleven through fourteen are mere elaboration of the general grounds and are controlled by the law of the case. The evidence authorized the finding that the respondent was guilty of contempt as charged in the petition, and there was no error in overruling the motion for a new trial on all grounds properly included, which does not include exceptions to the sentence imposed.
6. The court had jurisdiction to impose punishment on each count though the total exceeds the legal limits for one count. Brannon v. State, 21 Ga. App. 328 (94 S. E. 259); Peters v. U.S., 94 Fed. 128 (7) (36 C.C.A. 105); Ex parte A. S. Genecov, 143 Tex. 476 (186 S.W. 2d, 225, 160 A.L.R. 1099).
7. We now come to the most difficult questions in the case, whether the punishment inflicted is an abuse of judicial discretion and so cruel and unusual as to contravene article I, section I, paragraph IX of the State Constitution. While it may seem somewhat illogical to say that even if the punishment meted out on each individual count is legal and proper the sum total is excessive, cruel and unusual, the cumulative result and effects of the judgment cannot be avoided by dividing it into pieces. The court rendered but one judgment and knew what the effect of that judgment would be, a fine of $11,900 and confinement in j ail for over three years. It may be logical, or at least more nearly logical, to say that the sentence on each individual count was excessive under the circumstances, when their cumulative effect is taken into consideration. We think that the sentence is contrary to the spirit of the law of this State and against its policy. The law limits the punishment for a single contempt to the maximum of $200 and twenty days in jail, no matter how malicious, how flagrant, and how iniquitous the act of contempt might be. If the respondent had been caught at the State line the first day his punishment could not have exceeded a fine of $200 and confinement in jail for twenty days, despite the fact that he had the same overall design and purpose as he would [447] have had if he had succeeded in his purpose and defied the court two hundred and thirty-seven more days. The sentence in this case seems to include multiple and cumulative punishment for a single design. We do not say that the judge was in error because he imposed sentence for each technical violation of the court’s order, under the law of the case, but we do think that the punishment was excessive in its entirety. Another reason why the sentence is contrary to the spirit of the law of contempt and the law against cruel and unusual punishments, is that the sentence to long confinement in jail is so exceptional. To say that it is unusual is to put it mildly. Jails are primarily places of confinement and not places or methods of punishment except in a few cases, misdemeanor cases and contempt cases and possibly others, but it is seldom that in misdemeanor cases a criminal is required to serve more than six months in jail even under sentences involving more than one misdemeanor. Such a long term in jail will inevitably tend to impair the health of the respondent. While we agree that the respondent should suffer some punishment we do not think that the very law which he is being tried for flouting and.trampling under his feet should be so oppressive and cruel in its dealing with him as to tend to make it unworthy of the respect which the respondent is charged with abusing. We intend no criticism of the trial judge whose error on such a novel question was actuated by a high devotion to the courts and laws which have been so lightly treated by the respondent. In such a case as this the plane of observation is sometimes the difference between justice and error. We dare say that if our point of observation were reversed with that of the trial judge and he reviewed the same sentence our too-closeup view would be revised by him.
The court did not err in rendering any of the judgments complained of except the sentence, which was erroneous. The judgments are affirmed with the exception that the judgment imposing sentence is reversed with direction' that the court, without retrying the issues, enter another judgment imposing sentence not inconsistent with this opinion.
Judgments affirmed in part, and reversed in part with direction.
Gardner, Townsend and Worrill, JJ., concur. Sutton, C.J., and MacIntyre, P.J., dissent.