Summary
In Justice v. State, 154 So. 265, it was held that unless and until a motion for a new trial has been filed, setting up the ground that the verdict is contrary to the weight of the evidence, this court will not entertain such a contention here for the first time.
Summary of this case from Cates v. StateOpinion
No. 30944.
April 16, 1934.
1. CRIMINAL LAW.
Assignment that verdict was against weight of evidence could not be entertained by Supreme Court in absence of motion for new trial in trial court.
2. CRIMINAL LAW.
Where there is any substantial, reasonable testimony which, conceding it is true, sustains case of party litigant, peremptory instruction should not be granted against such party.
3. CRIMINAL LAW.
On motion for new trial on ground verdict is contrary to evidence, court must look over entire testimony and if of opinion that verdict is against overwhelming weight or clearly against preponderance of evidence, trial court should grant new trial.
APPEAL from Circuit Court of Ittawamba County.
I.L. Sheffield, of Fulton, for appellants.
I respectfully submit to the court that on the evidence produced the overwhelming weight and preponderance thereof substantiates the story told by Bud Justice and Governor Williamson; that the evidence as given by William Floyd and his wife does not conform to any of the other testimony in the case and is not supported by reason and common sense; that their story is not reasonable. There is no proof in this record tending to show that Governor Williamson or Bud Justice attempted to kill any one.
The evidence is contrary to the verdict and for the reason set out this case should be reversed and a new trial awarded.
Wm.H. Maynard, Assistant Attorney-General, for the state.
In order to warrant complaint of trial court's action on appeal, action must have arisen from denial of request.
Grady v. State, 144 Miss. 778, 110 So. 225; Dugan v. State, 151 Miss. 781, 119 So. 298; Pickle v. State, 151 Miss. 549, 118 So. 610; Pruitt v. State, 139 So. 861; Fairley v. State, 152 Miss. 656, 120 So. 747.
A verdict on conflicting evidence is conclusive on appeal.
Watkins v. State, 34 So. 150; Brown v. State, 103 Miss. 639, 60 So. 726; Steward v. State, 154 Miss. 858, 123 So. 891; Kelly v. State, 158 Miss. 808, 131 So. 272; Matthews v. State, 148 Miss. 696, 114 So. 816; Evans v. State, 159 Miss. 561, 132 So. 563.
None of the assignments present reversible error. However, except for the point now to be discussed, one of the assignments would be serious, so far as concerns the appellant, Williamson. This assignment is that the verdict is against the great weight of the evidence. But there was no motion for a new trial; and the attorney-general has raised the point that the assignment that the verdict is against the weight of the evidence cannot be entertained by this court in the absence of a motion for a new trial in the trial court. Upon mature consideration, we are of opinion that the attorney-general is correct in his position upon the stated point.
In Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564, followed in Mobile O. Railroad Co. v. Johnson, 165 Miss. 397, 141 So. 581, the authorities were reviewed, going back through many years, in respect to the marked distinction in the power of the trial judge to grant a peremptory instruction, and the power, subsequently to be exercised, to set aside the verdict of the jury. The distinction, to state it briefly, is that if there be any substantial, reasonable testimony, and conceding that testimony to be true, which sustains the case of a party litigant, a peremptory instruction should not be granted against that party. When, however, the verdict of the jury has been returned, and a motion for a new trial is made upon the ground that the verdict is contrary to the evidence, the duty of the trial judge is then to look back over the entire testimony, and if he be of the opinion that the verdict is against the overwhelming weight or clearly against the great preponderance of the evidence, his duty is to set aside the verdict and grant a new trial. The stated rule is applicable alike to civil and criminal cases, and our courts have acted upon it in both those classes for many years, although there has been some obscurity of it in a few of the cases.
In Coccora v. Light Traction Co., 126 Miss. 713, 726, 89 So. 257, 259, it was said: "Section 3, rule 6, of the Revised Rules of this court is as follows: `The right of an appellant to obtain a review in this court of any ruling made in the trial court shall not depend in any wise upon his having filed in such court a motion for a new trial, or if such motion has been filed upon the grounds thereof being distinctly specified.' The purpose of this rule is to dispense with the necessity for a motion for a new trial when the error assigned is based upon any ruling made in the trial court, but the verdict of the jury and judgment entered thereon is in no sense a ruling of the trial court," and the court held that a motion for a new trial was necessary to the review of a verdict for excessiveness in amount. This ruling was followed, and the reasons therefor were emphasized in St. Louis S.F. Railway Co. v. Bridges, 156 Miss. 206, 125 So. 423. It follows inescapably that if a verdict is to be reviewed because against the great weight of the evidence, it is not sufficient that the trial judge may have refused a peremptory instruction, for that was a ruling made anterior to the verdict and, as above shown, is upon a distinct and separate preliminary question. The larger and ultimate question whether the verdict is against the great weight of the evidence does not arise until the verdict has been rendered, and before we can review that question the judgment of the trial judge must first be obtained upon it and his opinion and ruling upon it can be obtained only by a motion for a new trial, assigning that ground. Until a motion for a new trial has been made, assigning the ground mentioned, the trial judge not only has not ruled upon the question but has had no opportunity to rule upon it, and hence there has been no error in that respect for us to review.
Affirmed.