§ 175. Conflict in Evidence Ground for.-In very many, if not most, criminal cases, there is a conflict of evidence upon material facts. It is primarily the province and duty of the jury to determine where the truth lies. There must, according to settled principles of criminal law, be a preponderance of evidence against the defendant, to authorize a conviction. It is the duty of juries to be guided by this rule. But on which side is the preponderance of evidence cannot be determined by fixed rules.

It must be left to the good sense of the jury, under proper instructions as to the law, to determine the question. The court may entertain some doubt, and in case of serious doubt, especially in a criminal case, it may order a new trial. But the mere fact that there is a conflict in the evidence is not alone sufficient. The court must reach the conclusion that injustice has probably been done on the trial before it is justified in setting aside the verdict.

176. Insufficiency of the Evidence as Ground for.-An appellate court is, as a rule, reluctant to set aside a verdict on the ground of the insufficiency of the evidence. Insufficiency of the evidence is frequently alleged with nothing whatever to support the allegation. And should the appellate court favor this charge of insufficiency the final determination of a criminal cause would be indefinitely postponed. If the evidence tends to prove that the intent was as alleged in the indictment, the verdict will not be disturbed on the ground that the evidence failed to support the verdict. People v. Connor, 126 N. Y. 278; People v. Estrada, 53 Cal. 601; Fry v. Com. 82 Va. 334; Bailey v. Com. 82 Va. 107; Glover v. Com. 86 Va. 382. See Am. Dig. 1890, p. 3284, §§ 53-55; People v. Lenon, 79 Cal. 626. This much is clear.

When the evidence is insufficient in law to support a verdict, the refusal of the court to so instruct the jury, is good ground for a new trial. Chase v. Breed, 5 Gray, 443; Com. v. Merrill, 14 Gray, 418, 77 Am. Dec. 336; Com. v. Packard, 5 Gray, 101; Denny v. Williams, 5 Allen, 4; Polley v. Lenox Iron Works, 4 Allen, 329.

And similarly if the evidence in support of a criminal prosecution is so defective or so weak that a verdict of guilty based upon it cannot be sustained, the jury should be instructed to return a verdict of not guilty. Such a case arises when there is a material variance between the allegations and the proof.

In statutory form the rule assumes this language:

"If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant and they must follow the advice.” N. Y. Code Crim. Proc. § 410.

The same strictness in regard to exceptions will not be enforced in criminal as in civil cases; but the court will look at the substance, with the view to promote justice. A motion in form for the absolute discharge of a prisoner may be regarded, as in substance, a request to direct an acquittal, or that the court instruct the jury, as matter of law, that the prisoner could not be convicted. People v. Bennett, 49 N. Y. 137.

"I can see no reason, why the court may not, in a case presenting a question of law only, instruct the jury to acquit the prisoner, or to direct an acquittal, and enforce the direction, nor why it is This results from the rule not the duty of the court to do so. that the jury must take the law as adjudged by the court, and I think it is a necessary result. It follows that a refusal to give such instruction or direction in a proper case is error." Church, J., in People v. Bennett, supra.

The familiar rule, that an appellate court will not disturb a verdict unless it is palpably against the evidence, must be restricted to civil cases. To say, that in a criminal case especially one involving a capital offense, such a rule should be indulged is in effect saying that the judgments of the Palatine Hill and of the Leteran Palace should be substituted for a "verdict by his peers." Falk v. People, 42 Ill. 331; State v. Sopher, 70 Iowa, 494; Owens v. State, 35 Tex. 361; People v. Kohler, 49 Mich. 324; Turner v. State, 38 Tex. 169; State v. Miller, 10 Minn. 313; State v. Webb, 41 Tex. 68; Manuel v. People, 48 Barb. 548; Copeland v. State, 7 Humph. 479; People v. Lewis, 36 Cal. 531; Cochran v. State, 7 Humph. 544; State v. Packwood, 26 Mo. 340; Leake v. State, 10 Humph. 144; Sargent v. People, 64 Ill. 327; State v. Tomlinson, 11 Iowa, 401; Milton v. State, 6 Neb. 138. In the two last above cases the judgments were reversed, because there was not sufficient evidence of deliberation and premeditation.

Formerly in criminal cases courts should not grant new trials on such grounds. Now, by the express terms of the law, a motion for that purpose can be made, and an appeal from the judg

ment brings up for review the decision of such motion as well as the proceedings upon the trial. The power of interfering with the verdict in a criminal case is doubtless to be exercised with caution, especially where the question of fact to be determined is one incapable of direct proof and only to be established by inference from other facts. People v. Mangano, 29 Hun, 259.

A conviction that is clearly against the weight of evidence discloses fatal defects, and will be set aside on appeal. State v. Lyon, 12 Conn. 487; People v. San Martin, 2 Cal. 484; State v. Anderson, 2 Bail. L. 565; Lewis v. Payn, 4 Wend. 423; State v. Bird, 1 Mo. 417; Murray v. Rable, 4 Hayw. (Tenn.) 203; Ball v. Com. 8 Leigh, 726; Haynes v. Wright, 4 Hayw. (Tenn.) 63; Bedford v. State, 5 Humph. 553; State Bank v. Holcomb, 12 N. J. L. 219; Com. v. Briggs, 5 Pick. 429; Oram v. Bishop, 12 N. J. L. 177; D'Ayrolles v. Howard, 3 Burr. 1385; Coffin v. Phoenix Ins. Co. 15 Pick. 291; Rex v. Malden, 4 Burr. 2135; Hammond v. Wadhams, 5 Mass. 353; Copeland v. State, 7 Humph. 479; Wait v. M'Neil, 7 Mass. 261; Curtis v. Jackson, 13 Mass. 507; Bartholomew v. Clark, 1 Conn. 472; Kinne v. Kinne, 9 Conn. 102; Talcott v. Wilcox, 9 Conn. 134; Bacon v. Parker, 12 Conn. 212; Lloyd v. Newell, 8 N. J. L. 365; Mann v. Clifton, 3 Blackf. 304; Hoagland v. Moore, 2 Blackf. 167; Daniel v. Prather, 1 Bibb, 484; State v. Sims, 2 Bail. L. 29; Respublica v. Lacaze, 2 U. S. 2 Dall. 118, 1 L. ed. 313; Corbett v. Brown, 8 Bing. 33; Zuber v. Geigar, 2 Yeates, 522; Gibbs v. Tucker, 2 A. K. Marsh. 219; Hughes v. Howard, 3 Har. & J. 9; Newson v. Lycan, 3 J. J. Marsh. 440; Farrant v. Olmius, 3 Barn. & A. 692.

Rapalje says: "If there is any evidence to support the verdict the appellate court will not interfere. Russell v. State, 68 Ga. 785. A judgment of conviction will not be reversed merely because the jury disregarded irreconcilable evidence; (King v. State, 4 Tex. App. 256, 30 Am. Rep. 160; Jones v. State, 5 Tex. App. 86; Satterwhite v. State, 6 Tex. App. 609) or because of a conflict of evidence. Murphy v. State, 15 Neb. 383. To warrant a re. versal the evidence must preponderate against the verdict (Robertson v. State, 4 Lea, 425; Fitzhugh v. State, 13 Lea, 258) and even then a reversal does not necessarily follow. State v. Quinton, 59 Iowa, 362. Where the verdict finds defendant guilty of one offense and the evidence indicates another, the conviction will be reversed (State v. Craft, 72 Mo. 456), as it will be when

evidently founded on mere suspicion of guilt not upheld by the evidence. Morrison v. State, 13 Neb. 527." Rapalje, Crim. Proc. § 408.

The authorities are simply overwhelming, that in a criminal case, and more especially in a capital case, the verdict will be set aside when it is contrary to the weight of evidence. The rule that the court will not, on appeal, set aside a verdict on the ground that the evidence is not sufficient to sustain it, has been generally adopted in civil cases. But that rule has never been recognized in a capital case. In State v. Hunsaker, 16 Or. 497, the opinion is expressed, without deciding the point, that the power of the court, in criminal cases, to look into the evidence to see . whether the verdict is justified by it or not, is beyond doubt; and in State v. McGinnis, 17 Or. 332, the court felt it a duty, inasmuch as it was a capital case, to examine the record and see whether there was any error or any ground whatever for the appeal, although the usual practice would have been to affirm the judgment, there being no brief nor appearance on appeal. In Anderson v. State, 43 Conn. 514, where there was a conviction of murder in the first degree, the court directs a new trial, and says: "If we are to make a rigid application of the rules which govern the superior court in civil causes, we should doubtless advise that a new trial should be denied; but in a case where a human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor.

In State v. Clements, 15 Or. 243, which was not a capital case, the court say the sufficiency of the evidence to sustain the verdict will be considered on appeal when the point is presented by exception. In a capital case, however, the court will review the instructions that were given, although no exceptions were taken or saved to the rulings of the court by the defendant. State v. Packwood, 26 Mo. 341; Falk v. People, 42 Ill. 335. And so too where the defendant's counsel did not ask the court to charge the jury as they should have been charged, and the court doubted whether the question was presented so that it could consider it, nevertheless, the case being a capital one, the court did consider it and reversed the judgment. State v. Johnson, 40 Conn. 142; People v. Levison, 16 Cal. 99, 76 Am. Dec. 505. In People v. Bowers, 79 Cal. 415, a very recent California case, the court reviewed the evidence in a capital case, where it was conflicting,

and granted a new trial. State v. Forsythe, 89 Mo. 669; Pennsylvania R. Co. v. Zebe, 33 Pa. 318.

The appellate court will refuse to entertain a motion for a new trial on the ground of the insufficiency of evidence, when it appears that some proof was offered in the court below which tends to sustain the verdict rendered. This is well settled law. Wherever there is some evidence to sustain the material points of the indictment, there will be no reversal of the verdict. This position has been reaffirmed as late as 1891 by the appellate court of Indiana in the case of Baker v. State, 2 Ind. App. 517.

177. Verdict against Weight of Evidence.-In Ross v. Overton, 3 Cal. 309, 2 Am. Dec. 552, Judge Roane, delivering the resolution of the whole court, laid down the principle (in language which has since been cited and approved in many cases) thus: A new trial, on the ground that the verdict is contrary to evidence, "ought to be granted only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers." In Brugh v. Shanks, 5 Leigh, 598, Judge Carr, after quoting the above language of Judge Roane, says: "These remarks are applied to the court which presides at the trial, and has all the advantages (possessed by the jury) of seeing and hearing the witnesses; how much more strongly do they apply to an appellate court, deprived of these all important aids in eviscerating truth? But here they apply to a malto fortiorari; for not only have the triers appointed by law found the verdict, but the court which heard the witnesses has refused the new trial. In such a case the 'deviation' must be gross and palpable indeed, before I could agree to interfere with the verdict."

Upon an application of this kind the appellate court is always loth to disturb the judgment of the court below. On this point, Christian, J, delivering the opinion in Pryor v. Com. 27 Gratt. 1010, said: "We should act with great caution in granting new trials in cases where the new trial is asked solely upon the ground that the verdict is contrary to the evidence, and great weight is always given and justly so, to the verdict of the jury and judg ment of the court in which the case is tried. The cases are very

rare in which this court interferes, and it is only in a case where the evidence is plainly insufficient to warrant the finding of the jury." McDaniel v. Com. 77 Va. 281.