Justice v. State

• Citation: 170 Miss. 96,154 So. 265
• Decision Date: 16 April 1934
• Docket Number: 30944
• Court: United States State Supreme Court of Mississippi
• Parties: JUSTICE et al. v. STATE

154 So. 265

170 Miss. 96

JUSTICE et al. v. STATE

No. 30944

Supreme Court of Mississippi

April 16, 1934

Division B

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.

HON THOS. H. JOHNSTON, Judge.

APPEAL from circuit Court of Ittawamba county HON. THOS. H. JOHNSTON, Judge.

Bud Justice and others appeal. Affirmed.

Affirmed.

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.

OPINION

Griffith, J.

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...