39 So. 2d 783 | Miss. | 1949
The points raised on the suggestion of error were all raised and argued on the original appeal. Nevertheless we deem it advisable to respond to one of the contentions urged again on the suggestion of error. In responding to the contention made on the appeal that the evidence was not sufficient to support the verdict of guilty we used this language [39 So.2d 784]: "While the evidence was sufficient to sustain the verdict, we do not examine the assignment based upon a contrary contention, there having been no motion for a new trial based upon such ground."
Counsel say they have found no statute or decision holding that before a litigant can avail of the contention the verdict is against the weight of the evidence that it is essential that contention be embodied in a motion for a new trial in the lower court and be passed upon by the trial judge, and, they add, ". . . it is notable that the court in its opinion cited none so holding." The reason we cited no authority was that this has been the established and settled rule in this state for many years, so known and recognized, we thought, by the bench and bar generally. The reason underlying the rule is that the trial judge cannot be put in error as to a matter which was never presented to him for decision. It applies to both civil and criminal cases. If counsel desire to verify the existence of the rule and enlighten themselves upon the *703
subject they might read Justice et al. v. State,
Suggestion of error overruled.
