43 W. Va. 180 | W. Va. | 1897
Nibert, Dewitt, and Bowyer were sentenced to the penitentiary for burglary, and Bowyer took this writ of error. The sole question presented to us is whether the court ought to have set aside the verdict, as not warranted by the evidence. Three men broke and entered the dwelling-house of James Deivitt, a little after dark, and, forcing him to show where he had his money, took from his trunk two hundred dollars. James Dewitt and his sister, the only persons at the house, identified Nibert and Dewitt, but did not recognize the third man. They say he was to them a stranger. Bowyer was from Ohio recently lief ore, while Nibert and Dewitt lived in the neighborhood. Bowyer was at Nibert Js house all that'night. All three were there together. That is unquestioned. A very short time before the act, Bowyer stated to one Gardiner that he had spent what money he had, and wanted to borrow two dollars and pawn his coat for it. A witness stated that, a couple of days afterwards, Bowyer showed her a twenty-dollar gold piece, two two-dollar bills, and a ten-dollar bill. A twenty-dollar gold piece was among the money taken from Dewitt by the burglars. Bowyer admits showing the gold piece, but equivocates as to the other money. When asked if he showed the money, instead of
This evidence was before the jury, tending to connect him with the act. By no means can it be said that the case was without some evidence to inculpate Bowyer. It is not worth while to cite authority for the proposition that, where there is evidence tending to criminate, the jury is almost uncontrollably the judge of its force and weight, and of the proper inferences from the facts proven. But this was not all the evidence. The witnesses were face to face before, the judge and jury. The prisoner was before them. They saw him in the ordeal of examination. They scrutized his countenance, his demeanor, liis words, his tone. They were to judge of his veracity. They discredited his denial of guilt. They saw and heard all the witnesses, all the circumstances of the trial, — often silent,
Why have juries, if appellate judges are to go into the business of weighing evidence as if by the ounce and pound? We ought not to do this. It is an abuse of power, and a misconception of our functions and of the jury function. The jury institution is sacred under our Constitution, and a verdict is to be highly respected. In long experience, L must say that, as a general tiling, they evince good sense and do justice. From the frequency of requests to us to set aside verdicts, it seems to be thought that we can and will do so merely because we would not have found, judging from type, the same verdict; but such is not the rule, though instances deviating from these principles may be found, and I am very much averse to looseness in this matter on the part of appellate courts. And then, too, we must not forget that a learned and experienced judge approved the verdict, after witnessing the trial; and his opinion is entitled to great respect in an appellate court. State v. Hunter, 37 W. Va. 744, (17 S. E. 307).- We must be careful lest we set ourselves up as judge and jury present at the trial, and usurp their functions. We must affirm the judgment. Gilmer v. Sydenstricker, 42 W. Va. 57 (24 S. E. 566.)
Affirmed.