Mfg. Co. 140 Mass. 151. Nor will this proposition be sustained where the evidence in reference to it is too slight to be considered and acted on by a jury. It must be evidence having some legal weight. Such are the general doctrines of the decisions. A mere scintilla of evidence is not sufficient. Connor v. Giles, 76 Me. 134; Riley v. Connecticut River R. Co. 135 Mass. 292; Corcoran v. Boston & A. R. Co. 133 Mass. 509; Nason v. West, 78 Me. 256, and cases there cited; Cornman v. Eastern Counties R. Co. 4 Hurlst. & N. 784."

The old rule as stated by Mr. Justice Sharswood is likewise exploded in several of the states, whose courts are now in the constant habit of ordering nonsuits against the complaint of the plaintiff (Colt v. Sixth Ave. R. Co. 49 N. Y. 671; Brown v. European & N. A. R. Co. 58 Me. 384), of giving peremptory instructions to the jury to find for one party or the other (Wittkowsky v. Wasson, 71 N. C. 451; Fort Scott Coal & Min. Co. v. Sweeney, 15 Kan. 244); or of sustaining demurrers to the evidence, in cases where there is confessedly some evidence supporting a material issue. This is done under the guise of various expressions, which seem to leave the ancient prerogative of the jury intact. In Maryland, and perhaps other states, the judge achieves this result by determining the legal sufficiency of the evidence (Cole v. Hebb, 7 Gill & J. 20); and in Missouri by determining its legal effect. Harris v. Woody, 9 Mo. 113. See Howard v. Smith, 1 Jones & S. 128; Myers v. Dixon, 45 How. Pr. 48. See Thompson, Charging the Jury, § 30; 2 Bouvier, Law. Dict. title Scintilla of Evidence. It should be added that the drift of contemporary legal thought seems to sustain this latter view.

Other subdivisions of this topic will be found discussed in 2 Rice, Civil Evidence, p. 788 et seq.

CHAPTER XXVII.

EVIDENCE ON APPLICATION FOR A NEW TRIAL.

§ 170. Preliminary Remarks.

171. Prevailing Practice Outlined.

172. In what Cases Granted.

173. What Evidence Should Show.

174. Doctrine of Anarchist's Case Stated.

175. Conflict in Evidence Ground for.

176. Insufficiency of the Evidence as Ground for.
177. Verdict against Weight of Evidence.

178. Newly Discovered Evidence.

179. Admission of Illegal Evidence as Ground for.

180. Statements of Prosecuting Attorney of Matters not in Evidence.

181. Failure to Object to the Admission of Improper Evidence no Ground for.

182. Doctrine of Invited Error Considered.

183. Technical Errors Disregarded in Motion for.

184. Misconduct of Jury as Ground for.

185. Evidence of Irregularity in the Composition of the Grand

Jury.

186. Evidence of the Record on Appeal.

a. Rules in Admitting and Excluding Evidence.

b. Consideration of the Exceptions.

c. When Exceptions are Deemed Waived.

170. Preliminary Remarks.-The law in its strenuous efforts to meet our various constitutional requirements, and to zealously guard the rights and privileges of a free people has prescribed many formulas of practice that it is beyond the scope and nature of this undertaking to even outline. Suffice it to say in this connection, that where these rules and formulas of practice have been disregarded and are ruthlessly ignored by the presiding judge, or where through inadvertence the counsel for either the defense or the prosecution, are allowed to indulge in argumentation unwarranted by the evidence, or in personalities and innuendoes prejudicial to the defendant's rights, it is always competent to show these infractions of legal methods to the appellate court, and to urge their consideration as grounds for a new trial. An

extended familiarity with criminal law will at once suggest the importance of these observations and the incidents of any extended practice are doubtless many where, upon such a showing made, the court of review has come to the relief of the prisoner, and rectified a manifest wrong in the interests of justice and humanitv.

The point we wish to emphasize is this: Any failure to carefully observe the well recognized principles of criminal practice in the conduct of the trial constitutes reversible error.

But the courts do not lend an attentive ear to every application for a review of the former verdict. They must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case. A new trial is not granted, where the value is too inconsiderable to merit a second examination. It is not granted upon nice and formal objections which do not go to the real merits. It is not granted in cases of strict right or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal: that which leans against the former verdict ought always very strongly to preponderate. Chitty's Bl. Com. chap. 24, p. 391.

The records of our appellate courts abundantly establish the proposition that by far the most serious errors of the trial courts are connected with the charge to the jury. Error in this respect is a prolific source of disquietude not only to the prosecution, but in many instances to the court itself. The vagaries of the different judges even in the contracted sphere of definition frequently leads to perplexing and anomalous results, and it is by no means in the reception of improper evidence, or in the rejection of a pertinent offer to prove that reversible error is most frequently found. It is a truism which needs an apology for restatement that it is entirely competent to show any error in the presiding court; and any evidence which is calculated to disclose such error is always relevant and material, provided it is brought to the attention of the reviewing court in the appropriate and appointed manner. Indeed, it may be stated that this duty of charging the jury is rapidly rising into co-ordinate importance with the most intricate topics of criminal law.

171. Prevailing Practice Outlined. The prevailing prac

tice with reference to new trial is concisely stated in the recitals of sections 462-466 inclusive of the New York Code of Criminal Procedure. The provisions of this enactment are reflected in similar statutory provisions in every state of the American Union. I append the full text of the sections referred to.

A new trial is the re-examination of the issue, in the same court, before another jury, after a verdict has been given.

The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew; and the former verdict cannot be used or referred to, either in evidence or in argument.

§ 172. In what Cases Granted.-The court in which a trial has been had upon an issue of fact has power to grant a new trial after a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases:

1. When the trial has been had in his absence, if the indictment be for a felony;

2. When the jury has received any evidence out of court, other than that resulting from a view, as provided in section four hundred and eleven;

3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented;

4. When the verdict has been decided by lot, or by means other than a fair expression of opinion on the part of all the jurors;

5. When the court has misdirected the jury in a matter of law, or has refused to instruct them as prescribed in section four hundred and twenty; and the defendant has, at the trial, excepted to such misdirection or refusal;

6. When the verdict is contrary to law or clearly against evidence;

7. When it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as if before received would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative, and the failure to produce it on the trial was not owing to want of diligence.

§ 173. What Evidence Should Show.-To entitle the accused to a new trial the evidence must clearly show that the result

reached by the trial court was unwarranted by the evidence and hence affects the substantial merits of the case. Wilson v. People, 94 Ill. 327; Calhoun v. O'Neal, 53 Ill. 354; Leach v. People, 53 Ill. 311; Perteet v. People, 70 Ill. 171.

§ 174. Doctrine of Anarchist's Case Stated.-"The tendency of legislation, as well as the decisions of the courts, is to have legal controversies of all kinds disposed of on their merits, and not upon mere technicalities." Petty v. People, 118 Ill. 157.

This doctrine is fully stated by Mr. Justice Mulkey in his opinion in the famous case of Spies v. People, 122 Ill. 266. He uses the following language:

"I desire to avail myself of this occasion to say from the bench that while I concur in the conclusion reached, and also in the general view presented in the opinion filed, I do not wish to be understood as holding that the record is free from error, for I do not think it is. I am nevertheless of opinion that none of the errors complained of are of so serious a character as to require a reversal of the judgment.

"In view of the number of defendants on trial, the great length of time it was in progress, the vast amount of testimony offered and passed upon by the court, and the almost numberless rulings the court was required to make, the wonder with me is that the errors are not more numerous and more serious than they are. In short, after having carefully examined the record and giving all the questions arising upon it my very best thought, with an earnest and conscientious desire to faithfully discharge my whole duty, I am fully satisfied that the conclusion reached vindicates the law, does complete justice between the prisoners and the state, and that it is fully warranted by the law and the evidence."

An inward persuasion has long been diffusing itself and now and then comes to utterance that the criminal classes of this country have been accorded too great a leniency in the universal habit hitherto prevailing of reversing the verdict upon the appearance of the least technical error in the record. We cannot regard with indifference that which has such high claims to a favorable consideration as does any well considered utterance of this exceedingly able court and if the views of the last paragraph were generally adopted, justice would be better served and crime more effectually punished.