should render a verdict of not guilty; that if they had a reasonable doubt of the presence of the accused at the scene of the alleged homicide they must find them not guilty; that the innocence of defendants must be presumed until the case against them is in all its material circumstances proved beyond a reasonable doubt; that, to find them guilty, the evidence must be strong and cogent, and unless it is so strong and cogent as to show defendants' guilt to a moral certainty the jury must acquit, and if there is a probability of defendants' innocence the jury must render a verdict of not guilty. We think the rules applicable to the weight to be given circumstantial evidence, the degree of proof requisite to convict, the doctrine of reasonable doubt, and its relation to circumstantial evidence, and to every material fact necessary to be proved, whether by circumstances or by positive evidence, were given with such fullness in the instructions mentioned as to justify the court in declining to further expound them in the request presented. We are also of opinion that the court was justified in refusing the thirteenth requested instruction, because of its confusing and misleading tendency. Graves v. People, 18 Colo. 170, 32 Pac. 63.

The thirty-eighth and thirty-ninth assignments of error are expressly abandoned.

The fortieth assignment of error is predicated upon the court's refusal to give the seventeenth instruction requested by defendants, the refusal to give which was duly excepted to. The refused instruction is as follows: "The fact that the alleged crime may have been committed in a brutal, cruel, and revolting manner, that foul and cowardly means may have been resorted to in the accomplishment of the same, will not authorize you to come to a hasty conclusion as to the guilt of the individual charged with the murder; nor will you for the reasons stated be relieved of your duty as jurors to carefully weigh and closely scrutinize the evidence in all its phases. In other words, you are bound to listen to and give weight to the testimony the same as if the alleged homicide may have been committed in a manner less brutal and revolting, and by means less cowardly and foul. The degree of cruelty should not weigh at all in the determination of the question of guilt or innocence." The court did instruct the jury at defendants' request as follows: "I further instruct you, gentlemen of the jury, and caution you against conviction from prejudice or insufficient evidence. Unless you are satisfied from the evidence beyond a reasonable doubt of the guilt of the accused, you should render a verdict of not guilty, however strong may be your prejudice, if any you have." The court evidently considered the caution given as sufficient under the circumstances of the case, and we see nothing in the record which justifies us in saying it was not. We

cannot, therefore, hold the court in error for refusing the seventeenth instruction.

The forty-first, forty-third, and forty-fourth assignments of error are expressly abandoned.

The forty-second assignment of error is based upon the refusal of defendants' nineteenth requested instruction, which is as follows: "The court further instructs you that it does not devolve upon the defendants to account for or to show the whereabouts of the alleged deceased, I. O. Arms." The court's instructions to the jury distinctly told them that the burden of proof was upon the state; that defendants were presumed to be innocent, and that the material facts necessary to constitute the crime charged must be proven beyond a reasonable doubt. The death-not simply the "whereabouts"— of Arms was a material fact, to be proven and embraced in the charge that the burden of proof was upon the state to prove material elements of the crime. The refused instruction merely asserts that the defendants are not required to show the "whereabouts" of Arms, which is but stating in an indirect way that the state must prove it, to entitle it to a verdict. In view of the instructions given, we think the nineteenth instruction was properly refused.

The other assignments of error not expressly abandoned we do not deem it necessary to consider, in view of the conclusion reached.

The judgments of conviction are reversed, and new trials granted.

TEAL v. STATE.

(Supreme Court of Florida. Oct. 8, 1901.) CRIMINAL LAW-NEW TRIAL-INSUFFICIENT

EVIDENCE.

Where there is sufficient evidence in a case to sustain a conviction, and there is nothing in the record to support the assumption that the jury were improperly influenced by considerations dehors the evidence, an appellate court is not authorized to disturb the settlement by the verdict of the credit due to conflicting witnesses.

(Syllabus by the Court.)

Error to circuit court, St. Johns county; Rhydon M. Call, Judge.

Will Teal was convicted of assault with intent to kill, and brings error. Affirmed.

L. E. Wade, for plaintiff in error. William B. Lamar, Atty. Gen., for the State.

TAYLOR, C. J. The plaintiff in error, under an indictment charging an assault with intent to murder, was tried and convicted at the spring term, 1901, of the circuit court of St. Johns county, of the crime of assault with intent to commit manslaughter, and appears here by writ of error. The indictment is as follows: "The grand jurors of the state of Florida, impaneled and sworn to inquire and true presentment make, in and

for the body of the county of St. Johns, upon their oath do present that one Will Teal, late of the county of St. Johns and state of Florida, on the 1st day of August in the year of our Lord 1900, in the county and state aforesaid, with a certain deadly weapon, to wit, a gun, then and there being charged with gunpowder and divers leaden shot, which he, the said Will Teal, then and there held in his hands, feloniously, willfully, and of his malice aforethought, and from a premeditated design to effect the death of Burrell Ford, in and upon the said Burrell Ford did make an assault, contrary to the statute."

After verdict the defendant moved in arrest of judgment upon the following grounds:

(1) There is no crime charged in the indictment.

(2) There is no sufficient allegation in the indictment to constitute the offense of assault with intent to murder, or any other of the minor offenses included in such offense.

(3) The indictment does not show that the assault was made with the gun, or that the defendant used the gun in making such assault.

(4) The greatest offense, if any, charged, is a simple assault.

The denial of this motion is assigned as

error.

In the briefs of counsel for the plaintiff in error filed here this assignment of error is practically abandoned, the only reference to it being as follows: "The court erred in sentencing the defendant, and also in entering a judgment upon a verdict found upon the indictment, there being no sufficient allegations in the indictment to constitute the offense of assault with intent to murder." How, or in what particular, the indictment is defective, or falls short of charging the offense, is not mentioned, except as is set forth in the third ground of the overruled motion in arrest, to the effect "that the indictment does not show that the assault was made with the gun, or that the defendant used the gun in making the assault." We think that the indictment does charge with sufficient explicitness that the assault was made with a gun loaded with gunpowder and leaden bullets, etc.

The defendant moved for a new trial on the grounds that the verdict was contrary to the law and the evidence, and because the court erred in sustaining an objection by the state to a question asked by the defendant of his own witness, one Harmon Osgood, as to a former statement made by him to defendant's counsel touching the al leged assault. The denial of this motion is assigned as error. There was evidence in the case that, if believed by the jury, was sufficient to sustain the conviction. This being true, and there being nothing in the record upon which the assumption can be predicated that the jury were improperly in

fluenced by considerations outside of the evidence, this court is not authorized to disturb their settlement of the credit due to conflicting witnesses. Browning v. State, 41 Fla. 271, 26 South. 639, and numerous Florida cases there cited.

During the examination by the defendant's counsel of one Harmon Osgood, a witness for the defense, after the witness had answered that he did not know who shot first, the defendant or the assaulted prosecutor, defendant's counsel asked said witness the following question: "Did you not tell me yesterday, on the corner of the street, right over there, in the presence of Rail Teal, that Ford shot first?" The alleged ruling out of this question by the court on an alleged objection thereto by the state attorney, as before seen, was made a ground of the motion for a new trial, and such alleged ruling is made the third and last assignment of error. There is nothing in the bill of exceptions showing that any objection was made at the trial to said question; neither does the bill of exceptions show that it was excluded by the judge; but the bill of exceptions simply shows that the question was asked of the witness, and that he failed to answer it. There is therefore ro foundation of fact to support this assignment of error.

Finding no error in the record, the judgment of the circuit court is hereby affirmed.

FARRELL v. SOLARY.

(Supreme Court of Florida. May 21, 1901.) NEW TRIAL-CONFLICTING EVIDENCE-ABUSE

OF DISCRETION-REVIEW.

A trial court should not grant a new trial on the ground that the verdict is not supported by the evidence, where there is material conflict in the evidence, unless the weight of the testimony so clearly preponderates against the verdict found as to require its annulment in order to meet the demands of justice. But trial courts, of necessity, are vested with a discretion in granting or withholding new trials. And where they grant one on the ground that the evidence does not sustain the verdict, in a case in which the evidence is conflicting upon a material issue, an appellate court, acting under the statute (section 1267, Rev. St.) authorizing writs of error from orders granting new trials, will not reverse such order unless it is affirmatively and clearly made to appear, from a clear and palpable pre ponderance of evidence in support of the ver dict overturned, that the trial judge has abused the discretion with which he is vested in such cases, or that some settled principle of law has been violated. Simply because an appellate court, from the showing made in the record before it, might not have granted the new trial had it acted in the first instance in place of the trial judge, or because it would not, under the same circumstances, have disturbed a ruling denying such new trial, furnishes no reason of itself to an appellate court for reversing an order of a tria: judge granting a new trial.

(Syllabus by the Court.)

Error to circuit court, Duval county; Rhydon M. Call, Judge.

a new trial at law, the party aggrieved by such order may, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, which shall review the said order, and if the cause be reversed, shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail." Substantially the same provision of law prevails in many of the American states, and the rules for the government of the appellate courts in reviewing such orders are practically well settled. Thus, in the case of Hicks v. Stone, 13 Minn. 434 (Gil. 398), it is said: "The appellants insist that these cases are to be decided by this court as if the motions for a new trial were made here de novo, and that the granting of a new trial is not a matter of 'discretion in the presiding judge, but to be determined by this court upon the rules and principles governing such motions, without regard to the opinion of the court below.' To this we do not agree. As the statute confers the right of appeal from an order by which a new trial is granted on account of the insufficiency of the evidence to justify the verdict, it is obvious that cases are contemplated in which it will be the duty of the appellate court, upon a careful review of the evidence reported, to reverse the order appealed from. If this is not so,-if the opinion of the presiding judge upon the weight of evidence is conclusive in all cases, then the right of appeal is a delusion; and the legislature, in pretending to confer the right, would be convicted of trifling with the administration of justice,-an idea not to be entertained. But while the appellate court can look at the return only, the judge before whom the action is tried at nisi prius observes the demeanor of the witnesses, listens to the arguments of counsel, notes what topics are presented to the jury, and with what force and ingenuity,-in short, he witnesses the whole conduct of the trial, and thus enjoys peculiar facilities for estimating the effect which will naturally be produced upon the minds of the jury, and for forming a judgment upon the real merits of the controversy. In view of these facts, we concelve that the opinion of the presiding judge upon the sufficiency of the evidence to justify a verdict is entitled to great weight with this court, where it is called upon to review an order granting a new trial. In such cases the duty imposed upon this court is difficult, embarrassing, and delicate, but it is a duty from which we have neither the desire nor the right to shrink. In our judgment, however, we should not be warranted in reversing an order of this kind simply because, if the judge below had refused to grant a new trial, we should have felt bound to sustain him; nor because there was evidence reasonably tending to support the ver

dict; nor because, if the motion for a new trial had been made before us in the first instance, we should, upon a consideration of the evidence and its preponderance, have denied the motion. But if upon a careful perusal of the testimony, and upon mature reflection, we feel satisfied that the preponderance of the evidence is manifestly and palpably in favor of the verdict, we should then deem it our duty to reverse an order granting a new trial. To do otherwise would be to permit a judge to usurp the functions of a jury, and to ignore the line of distinction which separates the legitimate province of the one from that of the other." And again, in Rheiner v. Transfer Co., 29 Minn. 147, 12 N. W. 449, reaffirming the case last quoted from, it is said: "The matter of granting or refusing a new trial on the ground that the verdict is against the evidence is, within certain established rules, largely within the discretion of a trial court; and the power of reversing its action will be exercised by an appellate court with caution, and not unless the trial court has abused its discretion." In the case of Ruffner v. Hill, 31 W. Va. 428, 7 S. E. 13, it is said that: "The trial court may, in the exercise of a sound discretion, set aside the verdict of a jury and award a new trial in a case where the evidence is contradictory; but this discretion in such case should always be exercised with great caution, and a new trial granted only where the verdict is against the weight of evidence. Where a new trial has been granted in such case, the opinion of the trial court is entitled to peculiar respect; and the appellate court ought not to interfere with the order granting the new trial unless, upon an examination of the whole evidence, it finds a clear preponderance of evidence in favor of the verdict. It is the constant practice in such cases to refuse to disturb such order, even where the court would have done the same thing had a new trial been denied." In Sperry v. Spaulding, 49 Cal. 252, it is said that "it is the settled rule that an order granting a new trial for insufficiency of evidence to support the verdict will not be disturbed here when the evidence is shown to be conflicting in its character." Downey v. Hellman, 58 Cal. 62. In Treadway v. Wilder, 9 Nev. 67, it is said that: "The court below ought not to grant a new trial when there is conflicting evidence, except the weight of evidence clearly preponderates against the verdict. But when the court grants a new trial the appellate court will not interfere unless the weight of evidence clearly preponderates against the ruling of the court." Anderson v. Cahill, 65 Iowa, 252, 21 N. W. 593. In School Dist. v. Bishop, 46 Neb. 850, 65 N. W. 902, it is held that: "The granting of a new trial is largely within the discretion of the trial court. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it." And in the case of Reddick v. Jo

seph, 35 Fla. 65, 16 South. 781, it is held that "the order of the trial judge granting a new trial should not be disturbed unless it appears affirmatively from the record that there has been an abuse of a sound discretion, or that some settled principle of law has been violated." From these and other cases that we have examined the following rule may be deduced: A trial court should not grant a new trial on the ground that the verdict is not supported by the evidence, where there is material conflict in the evidence, unless the weight of the testimony so clearly preponderates against the verdict found as to require its annulment in order to meet the demands of justice. But trial courts, of necessity, are vested with a discretion in granting or withholding new trials. And where they grant one on the ground that the evidence does not sustain the verdict in a case in which the evidence is conflicting upon a material issue, an appellate court will not reverse such order unless it is affirmatively and clearly made to appear, from a clear and palpable preponderance of evidence in support of the verdict overturned, that the trial judge has abused the discretion with which he is vested in such cases, or that some settled principle of law has been violated. Simply because an appellate court, from the showing made in the record before it, might not have granted the new trial had it acted in the first instance in place of the trial judge, or because it would not, under the same circumstances, have disturbed a ruling denying such new trial, furnishes no reason of itself to an appellate court for reversing an order of a trial judge granting a new trial. The motion for new trial granted in this case was upon the ground, among others, that the verdict was not supported by the evidence, and was contrary thereto.

A material issue in the case was as to whether an admitted material alteration in the time of payment in the note sued on, made subsequently to its indorsement by the defendant, Solary, had been consented to and ratified by him. Upon this material issue in the case there were but two witnesses, -the defendant, Solary, himself, and Cromwell Gibbons, the principal maker of the note. Gibbons testified that the note when indorsed by Solary was payable 30 days after its date, but that in Solary's absence it was subsequently altered by him so as to be payable in 10 days after date, but that after so altering it he took it to Solary, who consented to such alteration, thus ratifying it. Solary, on the other hand, flatly denied consenting to or ratifying such alteration. Under these circumstances, in the absence of any definite statement of the precise ground upon which the order was predicated, and in the absence of any clear preponderance of evidence against the ruling of the court, we cannot, in a case where there has been but one verdict, adjudge the ruling of the circuit

judge to be an abuse of the discretion with which he is vested.

As the order must be affirmed upon the grounds already discussed, it becomes unnecessary to consider other features of the motion for new trial that have been presented in the briefs.

The order of the circuit court is hereby affirmed at the costs of the plaintiff in error.

ALLEN v. LEWIS.

(Supreme Court of Florida. Oct. 29, 1901.) NEW TRIAL--GROUNDS-REVIEW-CONFLICTING EVIDENCE.

1. When the trial court, under section 1267, Rev. St., grants a motion for a new trial, containing several grounds, without stating any ground or grounds upon which the ruling was based, it will be affirmed if any ground of the motion is sufficient to authorize it.

2. The trial court should not, in the exercise of a discretion vested in it for that purpose, grant a new trial on the ground that the verdict is not supported by the evidence. where there is a material conflict in it, unless its weight so clearly preponderates against the verdict found as to require its annulment in order to meet the ends of justice. Where, however, a new trial is granted on the ground stated, where there has been but one trial, in a case where the evidence is conflicting upon a material issue, the appellate court will not reverse the ruling unless it is affirmatively and clearly made to appear from a palpable preponderance of the evidence in support of the verdict overturned that the trial judge abused the discretion with which he is vested in such cases, or that some settled principle of law has been violated.

(Syllabus by the Court.)

Error to circuit court, Leon county; John W. Malone, Judge.

Action by George W. Allen against George Lewis. Verdict for plaintiff. From an order granting a new trial, he brings error. Affirmed.

Alex. St. Clair-Abrams and Fred T. Myers. for plaintiff in error. Geo. P. Raney and John A. Henderson, for defendant in

error.

PER CURIAM. This cause, coming regularly on for final decision, was referred by the court to its commissioners for consideration; and they have reported the case to the court, with recommendation that the judgment of the trial court granting a new trial be affirmed.

It appears to the court, from an examination of the transcript of the record, that the writ of error is sued out to review the order of the trial court granting a new trial to the defendant below on his motion for that purpose, embodying the grounds, in substance, that the verdict was contrary to, and not supported by, the evidence; that the court erred in admitting certain evidence on be half of plaintiff below over the objections of defendant, in giving certain instructions at the request of plaintiff, and in permitting the plaintiff to amend his declaration after