It is not enough to justify interference with the verdict that the court on the case before it can see that the evidence made the case a conflicting or doubtful one, demanding the solution of a verdict to settle the doubt or conflict; but it must be quite apparent that the conflict has been settled by a verdict against the substantial and preponderating weight of evidence.

It was said by Brady, J., in People v. Panniza, N. Y. (not rep.) that "justice requires a new trial whenever the court can perceive in reviewing all the evidence, either that a verdict of acquittal should have been rendered or that the jury were led by reason of prejudice into convicting the defendant of a grade of offense altogether unwarranted by the evidence." See also Prather v. Com. 85 Va. 122. It is perhaps superfluous to add that where the verdict is wholly unsupported by the evidence the appellate court will reverse. State v. Hunt, 91 Mo. 490.

Where one was convicted of an assault on his wife with intent to kill and murder her, and the proof was clear that the accused did shoot his wife, it was held, that the question whether the shooting was an accident, or was intentional, was a question of fact for the jury; and that when they have settled that fact adversely to the defendant, without passion or prejudice, in accordance with the evidence, it was not the province of an appellate court to disturb the verdict. Dunn v. People, 109 Ill. 635.

§ 178. Newly Discovered Evidence.-After discovered evidence, in order to afford a proper ground for the granting of a new trial, must possess the following qualifications:

It must have been discovered since the former trial.

It must be such that a reasonable diligence on the part of the defendant could not have secured it at the former trial.

It must be material in its object, and not merely cumulative and corroborative, or collateral.

It must be such as ought to produce, on another trial, an opposite result on the merits.

It must go to the merits, and not rest on merely a technical defense. State v. Carr, 21 N. H. 166; Com. v. Murray, 2 Ashm. 41; Com. v. Williams, 2 Ashm. 69; Thompson v. Com. 8 Gratt. 637; Read v. Com. 22 Gratt. 924; Carter v. State, 46 Ga. 637. State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; Moore v. Philadelphia Bank, 5 Serg. & R. 41; Whart. Crim. Pl. & Pr. § 855.

Where the refusal to grant a new trial on the ground of newly discovered evidence is a matter largely within the discretion of the trial court, yet, if it appears that the evidence is material, and could not have been discovered with reasonable diligence, the supreme court will reverse the ruling. Where the object of evidence is to prove an alibi, the rule making newly discovered cumulative evidence insufficient to command a new trial has no application. State v. Stowe, 14 L. R. A. 609, 3 Wash. 206.

New trials for newly discovered evidence ought only to be granted after the most careful scrutiny of the evidence alleged to have been discovered, and when it raises a violent presumption that a different result would be reached upon a second trial. Thomp. Trials, § 2759; Hines v. Driver, 100 Ind. 315; Cooper v. State, 120 Ind. 377.

A new trial should not be granted upon the application of defendant, where the alleged newly discovered evidence is inconsistent with the testimony of the defendant on the former trial. People v. Hovey, 1 N. Y. Crim. Rep. 324. And evidence which existed and was known to defendant before the former trial cannot be considered newly discovered, because he has since discovered that it might have been important if used on the trial. People v. Hovey, supra. So if the accused relies, for the purpose of proving the character of the crime, upon the condition of his mind at the time of doing the act, he must proceed upon the trial to establish that condition by the production of all the evidence bearing upon the question within his knowledge, or which he could have procured by proper diligence. And, although there was the grossest laches, still, if the evidence was important, the court, in a case in which human life is at stake, should be very guarded in depriving the prisoner of the slightest right he may possess. Evidence merely cumulative in its character, can never afford proper ground for a new trial. People v. Biles, 5 West Coast Rep. 829; State v. Hyland, 19 West Coast Rep. 622.

§ 179. Admission of Illegal Evidence as Ground for.-The reception of illegal evidence is presumptively injurious to the other party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal. Many of the

earlier cases in New York favored a departure from the English rule on this subject, and maintained that it was impossible to determine whether the evidence improperly received might not have had a controlling influence upon the jury. Marquand v. Webb, 16 Johns. 89; Osgood v. Manhattan Co. 3 Cow. 621; Clark v. Vorce, 19 Wend. 232; People v. Wiley, 3 Hill, 214. The later decisions have modified this doctrine, in harmony with the general current of English and American authority, and we think they rest upon sound principles. The intendment is, that an error of the judge, whether in the admission of evidence or in his instructions to the jury, was prejudicial to the party, but there is no more difficulty in the one case than in the other, in determining, upon the whole record, whether, in the particular case, such intendment is repelled. Where it is apparent and obvious that the supposed error did not and could not affect the result, nor work either injury or injustice to the party accused, it does not call for a reversal of the conviction. Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; City Bank of Brooklyn v. Dearborn, 20 N. Y. 246; Forrest v. Forrest, 25 N. Y. 510; Smith v. Paton, 31 N. Y. 66; State v. Ford, 3 Strobh. L. 517, note; Rex v. Ball, Russ. & R. 132; Rex v. Tinkler, 1 East, P. C. 384; Horford v. Wilson, 1 Taunt. 12; Doe v. Tyler, 6 Bing. 561; Rutzen v. Farr, 4 Ad. & El. 53; Wright v. Doe, 7 Ad. & El. 313; Nathan v. Buckland, 2 Moore, 153; Stiles v. Tilford, 10 Wend. 339; Page v. Ellsworth, 44 Barb. 640; People v. McCann, 16 N. Y. 61, 69 Am. Dec. 642; Marcly v. Shultz, 29 N. Y. 356; People v. Bransby, 32 N. Y. 525.

§ 180. Statements of Prosecuting Attorney of Matters not in Evidence. In civil cases an argument to the jury not based on evidence, made against objection, will be ground for a new trial. Rolfe v. Rumford, 66 Me. 564; Tenny v. Mulvaney, 8 Or. 522; Tucker v. Henniker, 41 N. H. 318. In criminal cases the rule is more stringent. Ferguson v. State, 49 Ind. 33; People v. Quick, 58 Mich. 324; People v. Dane, 59 Mich. 552; State v. King, 44 Mo. 238. It is the duty of the court to stop the district attorney on its own motion when he states facts not before the jury, or uses vituperation and abuse predicated upon alleged facts not in evidence, and calculated to create prejudice to the prisState v. Gutekunst, 24 Kan. 252; Jenkins v. North Carolina Ore Dressing Co. 65 N. C. 563; State v. Williams, 65 N. C.

oner.

505; State v. Smith, 65 N. C. 369. A new trial was ordered where the court sustained an objection to the language, and admonished the attorney that it was improper. Long v. State, 56 Ind. 186; State v. Graham, 62 Iowa, 108. Where the court in a capital case interfered, rebuked the attorney, and instructed the jury to pay no attention to the statements, but it was impossible to say that no injury resulted to the defendants therefrom, a new trial was granted. People v. Bowers, 79 Cal. 415.

A very remarkable case illustrative of these remarks is reported in State v. Olds, 19 Or. 397. The case was one of homicide, and was invested in many theatrical incidents owing to the prominence of the parties, and the additional fact that the bunco fraternity of two states had combined to effect the release of the accused.

It was vehemently contended by the district attorney in his address to the jury, that the gamblers in Portland were at the bottom of the affair, that they had compassed the death of Weber, had employed Olds to carry out their design, and raised money to clear him and defeat the ends of justice. And he strongly intimated that the police force of the city had lent its aid and influence to further the scheme.

This harangue of the district attorney to the jury was highly sensational, and served, no doubt, to incite their passions and prejudice against the accused; but, unless justified by the evidence, was quite out of place. The trial of a fellow being for murder, where the penalty is death, devolves a grave responsibility upon the attorney for the state as well as upon the court and jury, and a conviction should never be urged unless justified by the proof, fairly weighed and considered. It is to ascertain the truth and apply the law, and a resort to imagination or fancy in order to incite the passions and prejudices of the triers, is a deviation from the true and proper course. To convict and put to death a human being through the influence of prejudice and caprice is morally murder, and more pernicious in its consequences by far, than the escape of a guilty person; and the forms of law should never be prostituted to such a purpose.

It has been held repeatedly that the court has no authority to review the decision upon a motion for a new trial; and has been intimated very strongly a number of times that the question as to the sufficiency of evidence to support the judgment or con

viction, must have been first passed upon in the trial court. Where the evidence in a capital case is shown to be clearly insufficient to warrant a conviction, it would be the duty of this court, under its supervisory power over the circuit courts, to reverse the conviction and order a new trial. "It is," says Blackstone, "the noble declaration of the law that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular." Bl. Com. (Cooley's ed.) 354; State v. Olds, 19 Or. 397.

Our extended comment on the foregoing case is fully warranted in view of the frequency with which the records in criminal cases under the review of the appellate court are encumbered with allegations touching the error of the trial court in tolerating the respective counsel in commenting upon the case as to matters not warranted by the evidence. In further exposition of this point I cite a case from California where the error complained of infected the record through the joint effort of the prosecuting attorney and the trial court. On the reversal the court says: "Unfortunately, the judge allowed himself rather frequently to question the witnesses, always in the interest of the prosecution, and often by putting questions which were leading and suggestive. We think the jury would be sure to get the impression that the judge thought the defendant guilty. Still more objectionable was the conduct of the prosecuting attorney. It is true, the court properly interfered, rebuking the attorney, and instructing the jury to pay no attention to the statements. But the statements were all calculated to influence the jury in a case of this character, and it is impossible for us to say that no injury resulted to the defendant therefrom. We think, upon a careful examination of the record, that the interests of justice require a new trial before a judgment of this gravity should be carried into execution." People v. Bowers, 79 Cal. 415.

The Illinois supreme court has placed the brand of condemnation upon a very common method much in vogue among our prosecuting attorneys. I refer to the almost universal habit of commenting upon the failure of the accused to take the witness. stand. Upon this subject the court says:

"It is to be regretted that counsel who assisted the prosecuting attorney referred, in his argument to the jury, to the fact that plaintiff in error was not placed on the stand as a witness, as one