9 Cal. 421 | Cal. | 1858
The defendant was indicted, tried, and convicted, in the Court of Sessions of Yuba county, of an assault with intent to commit murder. A motion for a new trial, on the ground that the verdict was against law and the evidence, was made and overruled, and the defendant appealed.
- The loose expression" of the1 defendant, that but for ttie seabbard on'the knife, he could or would have killed :tlie -witness, evidently-referredto the consequences of á blow with thé weapon unsheathed,-and not-to-his intent at the time. ■ The facts, as detailed in the record; fail- entirely to support the verdict;1 and as there was no conflict of testimony in the casé1, a-new trial should have-been-granted. - - , - . ¡ - ;
- On a motion for a new trial-in a criminal caserón the ground that the "verdict is against the evidence,;it is'usual to set out in the statement on which the motion is made, all the material portions of the testimony, and as a general rule this Court will not review, on appeal, an order refusing a new trial on that ground, unless such testimony is contained in the record. In the present case, the testimony is not set forth,, but the record states that it gives “in substance all that was proven on the part of the State.” This is sufficient; the facts, as proved, being given, there can be no necessity of setting'forth the,testimony'.^ i '"
Judgment reversed, and cause remanded for a new trial. - -