Campbell v. State

1 Miss. Dec. 413

Opinion

Opinion.

Per Curiam:

^Repeated examinations of the facts disclosed by the record impress us with the conviction that another trial should be awarded to the accused. It is so ordered.

Judgment reversed.

Footnotes

1

This court will not grant a new trial merely because the evidetfloo preponderates against the verdict, if there be proof legally conducing to the verdict. Dickson v. Parker, 3 How. 219.

Unless it be clearly against the evidence, or the palpable preponderance of evidence. Bowers v. Johnson, 10 S. & M. 169; Elzy v. Stone, 5 S. & M. 21; Fisher v. Leach, 10 S. & M. 313; Harris v. Halliday, 4 How. 338.

But if the jury find against the great preponderance’ of evidence a new trial will be granted. Sims v. McIntyre, 8 S. & M. 324; McQueen v. Bostwick, 12 S. & M. 604.

And where there is conflicting evidence, and no instructions asked, the preponderance of evidence against the verdict must be great. Mann v. Manning, 12 S. & M. 615.

And a new trial will not be granted by the court merely because the verdict is against the preponderance of evidence, and a contrary verdict would have been more satisfactory, there being no positive evidence upholding it. Lea v. Guice, 13 S. & M. 656.

The question in such a case is not is the verdict clearly right, but is it manifestly wrong. Waul v. Kirkman, 13 S. & M. 599; Prewett v. Coopwood, 30 Miss. 369; Drake v. Sarget, 36 Miss. 458.

And the test is, is there sufficient evidence fairly to support the verdict. Guion v. Doherty, 43 Miss. 538.

It will not be granted in a case of conflicting evidence, where the mind cannot repose with entire certainty and confidence upon a conclusion in favor of either party. Watson v. Dickens, 12 S. & M. 608.

Where there is a conflict in the evidence, one part sustaining the verdict, and the other against it, a new trial will not be granted unless the verdict be very clearly wrong. Garland v. Stewart, 31 Miss. 314; Gay v. Lemle, 32 Miss. 309.

The preponderance must be very clearly against the verdict. Harris v. Halliday, 4 How. 338.

Where the mind cannot repo-se with entire confidence and certainty upon a conclusion in favor of either party the verdict will not be disturbed. Watson v. Dickens, 12 S. & M. 608.

A new trial will be granted where there is no evidence to sustain the verdict. Crocket v. Young, 1 S. & M. 241.

And so where the verdict, considered with reference to the issue submitted to the jury, is not sustained by the evidence. Otey v. McAfee, 38 Miss. 348.

A new trial will not be granted on the evidence alone, unless the verdict be opposed by a decided preponderance of evidence, or based on no evidence. Cicely’s Case, 13 S. & M. 202; McMann’s Case, 13 S. & M. 471.

And power to set aside on the ground that verdict is opposed by decided preponderance of evidence. McMann’s Case, 13 S. & M. 471.

This is specially so in cases of circumstantial evidence. Browning’s Case, 33 Miss. 48.

A verdict will not be disturbed unless it is manifest from the whole record that it is clearly wrong, or unless misdirection or other apparent error may have produced it. McAlexander v. Puryear, 48 Miss. 420; Pfeifer v. Chamberlain, 52 Miss. 89.

Reluctant as this court is to disturb a verdict upon the sole ground of the sufficiency of the evidence, where there is a palpable failure of proof to sustain the verdict, it will not be allowed to stand. Harris v. State, 71 Miss. 462, 14 So. 266; Monroe v. State, 71 Miss. 196, 13 So. 884.

This court, in passing upon the correctness of a conviction, does not weigh conflicting testimony, and it will not look further than to see whether the verdict is supported by competent and sufficient evidence. In this connection the approval of the verdict of the trial judge who heard the evidence is a fact to be considered. Logan v. State, 53 Miss. 431.

But a verdict will be set aside on consideration of the facts alone if they fail to sustain it. Monroe v. State, 71 Miss. 196, 13 So. 884; Harris v. State, 71 Miss. 462, 14 So. 266; Dobson v. State, 67 Miss. 330, 7 So. 327.

A conviction will not be disturbed merely because the jury might, without being censurable, have acquitted. Skinner v. State, 53 Miss. 399.