Anderson v. State

33 So. 2d 790 | Miss. | 1948

The verdict in this case is supported by the direct, positive and unequivocal testimony of the prosecuting witness, and even if there were nothing to corroborate him, a peremptory charge would be improper.

The argument that the verdict is against the great weight of the evidence might be serious had appellants made a motion for a new trial assigning that as a ground, but they wholly omitted to do so. The rule announced in Justice v. State, 170 Miss. 96, 154 So. 265, fourteen years ago, that we could not review a case on that ground in the absence of a motion for a new trial, has never been departed from, except when waived by the State by not raising the point on the appeal. For instance, in Owen v. State, 197 Miss. 561,19 So.2d 822, the State did not mention the omission on the original submission but attempted to do so on a suggestion of error, and we held that we were not obliged on our own motion to raise the point on the original submission, and that the State could not for the first time do so on a suggestion of error. But, in the present case, the Attorney General has at once raised the point, and insisted upon it, wherefore the rule laid down in Justice v. State, must be followed.

Affirmed.