The evidence as to the marks upon the barrels was competent to identify the packages. It was sufficient to charge the larceny of so many gallons of brandy, and as a matter of evidence to show that it was in barrels and identify them. S. v. Harris, 64 N.C. 127. If the State had charged the larceny of barrels of brandy, it would have been held to proof of its having been in barrels when stolen. S. v. Moore, 33 N.C. 70.
It was not improper for the counsel for the prosecution to comment on the fact that the defendant had witnesses present, summoned by him, but had not introduced them. S. v. Jones, 77 N.C. 520. Nor was there any impropriety in asking why defendant did not prove by his brother where he was that night. It made no difference that such brother had been summoned by the State, or had not been summoned at all. The defendant could have summoned his brother as his witness in either event. S. v. Johnston,88 N.C. 623. In fact, in this case the State had tendered the witness to the defendant, who declined to put him on the stand.
It is too late after the verdict for the defendant to raise the point that there was no evidence to go to the jury. S. v. Braddy, 104 N.C. 737;Sugg v. Watson, 101 N.C. 188; S. v. Varner, ante, 744; S. v. Keath,83 N.C. 626 (for murder); McMillan v. Gambill, 106 N.C. 359.
That is a point which must be made in apt time. The defendant cannot lie by and thus take "two bites at the cherry." Hamlin v. Tucker,72 N.C. 503.
This would be trifling with the court. Treated as an omission to (751) charge, it is not ground for exception in the absence of a prayer for instruction. See numerous cases collected in Clark's Code (2 Ed., pp. 382, 394). Treated otherwise than as an exception for omission in the charge, it is waived if not taken at the time. Taylor v. Plummer,105 N.C. 56. Still less could such an exception be made for the first time in this Court. S. v. Bruce, 106 N.C. 792; Lawrence v. Hester,93 N.C. 79; S. v. Glisson, 93 N.C. 506, which hold that it must be taken "by a request to instruct the jury." The Attorney-General, however, waives the objection that the exception was not taken before verdict, and by consent we consider it as if it had been made in apt time. If there is not any evidence sufficient to permit the case to go to the jury, as a matter of law the court may so rule and withdraw
the case from the jury. But if it is merely weak evidence, not such as the presiding judge, himself, sitting as a juror, might perhaps convict upon, he has no such authority. The twelve jurors are the triers of fact, designated and provided for by the Constitution. If the presiding judge deems that the verdict is against the weight of evidence, or that the evidence was insufficient in his judgment to justify conviction, he is vested with the power to set aside the verdict and grant a new trial. This is a matter of discretion, and his granting or refusing a new trial on such ground is not subject to review here. The fact that twelve men have convicted on the evidence will often and properly make him less sure of his own opinion to the contrary. Nor should even he give a new trial merely because, if a juror, he might have voted for acquittal. Many things give color to the correctness of the verdict — the bearing and manner of the witness, shades of meaning dependent upon tone and emphasis, and the like. These cannot be presented in the record on appeal. The judges of the Superior Courts are humane and intelligent men, in whose hands this discretion has always been wisely vested, and we have no disposition to infringe upon their limits. It is (752) only when there is no evidence sufficient to be submitted to the jury, duly excepted to in apt time, that an appeal has ever been permitted. In some other States the appellate court, reaching out after jurisdiction, has so abused this rule that it has caused a provision to be placed in the State Constitution, notably in the Constitution just adopted by the State of New York, forbidding the Court of Appeals to grant a new trial, even upon the ground that there was no evidence whatever to go to the jury. If there if any abuse, it can be corrected by the pardoning power, and is more easily remedied than that seen in many States of the appellate court sitting as a revisory jury upon the facts, out of sight of the witnesses and those accompanying circumstances of which the jury and presiding judge had the benefit.
Without going into a detailed consideration of the evidence in this case, it is sufficient to say that there was sufficient evidence to warrant the case being submitted to the jury. Of the weight to be given it, the jury were the sole judges, subject to the supervisory power of the presiding judge to set aside the verdict, if in his judgment it was not warranted. His refusal to do so is not reviewable on appeal. This has always been settled law in this State.
No error.
Cited: S. v. Varner, ante, 745; Holden v. Strickland, 116 N.C. 190; S.v. Hart, id., 977; S. v. Green, 117 N.C. 696; Sutton v. Walters,118 N.C. 500; Turner v. Lumber Co., 119 N.C. 400; Riley v. Hall, id.,
415; Mallonee v. Young, id., 553; S. v. Beal, id., 811; S. v. Leach, id., 835; S. v. Pearson, id., 873; S. v. Harris, 120 N.C. 578; Ladd v. Ladd,121 N.C. 120; S. v. Wilson, id., 657; Benton v. R. R., 122 N.C. 1010;S. v. Gragg, ib., 1087; Powell v. R. R., 125 N.C. 372; S. v. Shines, id., 731; S. v. Costner, 127 N.C. 573; S. v. Mehaffey, 132 N.C. 1065; S. v.Goode, id., 985; Hart v. Cannon, 133 N.C. 14; McCord v. R. R., 134 N.C. 58;S. v. Young, 138 N.C. 571; Williams v. R. R., 140 N.C. 627; S.v. Houston, 155 N.C. 433; Baxter v. Irvin, 158 N.C. 280; Supply Co. v.Windley, 176 N.C. 22.
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