1. CRIMINAL LAW. Sentence authorized by statute is in trial court's discretion, and not reviewable.
Sentence of ten years in penitentiary imposed on conviction of assault with intent to kill and murder, being authorized by statute, is within trial court's discretion, and not reviewable.
2. CRIMINAL LAW.
Point of unconstitutionality of statute, authorizing the sentence, not being urged by defendant's counsel, will not be considered on appeal.
HOLDEN, P.J., delivered the opinion of the court.
Ben Harris appeals from a conviction on a charge of assault with intent to kill and murder, and a sentence of ten years in the penitentiary.
We see no good purpose to serve in setting out a detailed statement of the facts of the case. We have carefully considered the testimony in the case and think it is ample to support the verdict of the jury. The jury was justified, from the evidence, in finding that the appellant shot at and intended to kill the person named in the indictment.
We have examined all of the different assignments of error and are of the opinion that none of them are well grounded. The points presented are well settled by the law of this state, and we deem it unnecessary to discuss the questions or refer to the decisions of our court thereon.
The lower court did not err in refusing to grant a new trial. The sentence of ten years in the penitentiary imposed by the circuit judge was a matter within the discretion of the judge; and this court does not review the discretion exercised by the lower court in passing sentence, provided the sentence is within the limitations of the statute. There is nothing in the point that the sentence of ten years in this case was "excessive, cruel, and inhuman." If the statute authorizing the sentence of ten years is unconstitutional, counsel has failed to urge this proposition; and it not being raised by counsel, this court will not consider it. The judgment of the lower court is affirmed.
Affirmed.