# State v. Clifford

> West Virginia Supreme Court · February 13, 1906 · 59 W. Va. 1

URL: https://www.frixlaw.com/law-library/cases/8175794

## Case

- **Full name:** State v. Clifford
- **Court:** West Virginia Supreme Court
- **Decided:** February 13, 1906
- **Citations:** 59 W. Va. 1; 52 S.E. 981; 1906 W. Va. LEXIS 84
- **Precedential status:** Published
- **Opinion:** Dissent by Braknojsrjud
- **Judges:** Braknojsr, Jud, Poefbnbarger
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by State v. Lawson, 128 W. Va. 136 (1945).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8175794

## Opinion text

BRAKNOjsr, Jud&e,
(dissenting).
I dissent because the court reverses only because the evidence is not, in its opinion, strong enough to support the verdict. It thus assumes the office of a jury — or rather takes from a jury its functions. I cannot conceive that this case presents, in this point, a question of law. It is purely á question of fact under evidence. Two witnesses say that the accused, when the Cooks had left him, and were running away, looked at Turner standing ten feet away and fired upon him, while standing with his hands in his pockets. One says the accused looked at Turner a minute and fired. The accused and his father deny this. They do not deny that Turner was ten feet away; but the father says the accused fired as he was in the act of rising from the ground. Here is conflict. There is no conflict as to the exact position of Turner when shot. Nobody says he was beating the accused when shot. This is a critical point in the case. On it turns the degree of the crime, whether murder or voluntary manslaughter. Some evidence says that Turner joined in the battery on the accused *32 —other evidence denies this. On much evidence the jury-found, on these test questions of fact, that Turner was not a conspirator with the Cooks, was not a party to the battery, was not assailing Clifford when shot, but standing off silent.
This Court, on this conflict, finds that the evidence of the state, in these important matters, is unworthy of belief, virtually takes the evidence of the father; because if the state’s evidence is truthful, the jury could find as it did. There was as much evidence for the state in these vital matters, as for the accused, if not more. In fact, in some of them the evidence of the prisoner’s father alone controls. Once it was law that the court need not certify conflicting evidence for appeal, so final was regarded the verdict approved by a judge. Now, it is different; but when such evidence gets into this Court the rule prevails that we cannot defeat a verdict except we reject all evidence of the party against whom the jury decided conflicting with that of the adverse party, and give full faith and credit to the evidence of the latter, and if the remaining evidence tends to or goes fairly to support the verdict, it must stand unless it is deafly not sufficient. State v. Chambers, 22 W. Va. 779 ; Kinmmins v. Wilson, 8 Id. 584; State v. Balter, 33 Id. 319, pt. 4. We treat it as we treat a demurrer to evidence. In State v. Sullivan, 55 W. Va. 597 , we said, on what we thought was sound authority, that the evidence must be considered most favorably to the verdict. But in this instance evidence to support the verdict is discredited, and full faith given to the evidence to overthrow the verdict. Whilst this Court possesses power to defeat a verdict, though the evidence is conflicting, still it should rarely do so, and only do so with extreme caution, and only where the verdict is plainly contrary to right and justice. Robertson v. Harmon, 47 W. Va. 500 . This Court cannot set aside the verdict, in conflict, “merely because it thinks there is a preponderance of evidence against it or doubts its correctness,” or would itself have found a different verdict. Morien case, 102 Va. 622 . Indeed, where evidence conflicts it may be seriously questioned, even at this date, as a matter of strict legal principle, whether an appellate court can grant a new trial; for it has been held that, “upon familiar principles, recognized and approved in numerous cases, when there is a conflict of evidence, an appellate coui’t will never set aside a verdict where *33 the court which tried the case and heard the witnesses, concurs with the jury and has refused a new trial.” Caldwell v. Craig, 21 Grat. p. 136; note to Grayson’s case, 6 Id. annotated, 712; Michis v. Cochran, 93 Va. 641, 646 ; Seebright v. State, 2 W. Va. 596 ; State v. Thompson, 21 Id. 741, 756; Miller v. Ins. Co., 12 Id. 116, 124; Andrews case, 100 Va. 801 . In Grayson's case, cited, it is held “Where the evidence is contradictory, and the verdict is against the weight of evidence, a new trial may be granted by the court which presides at the trial; but its decision is not the subject of a writ of error or supersedeas, or examinable by an appellate court.” In 14 Ency. Pl. &. Prac. 780, it is laid down that the trial court can weigh conflicting evidence and grant a new trial, but an appellate court cannot. In strict principle I doubt whether a verdict should ever be set aside on evidence materially conflicting, but this Court has sometimes done so, especially under the act found in Codes 1891 and 1899, chapter 131, section 9. See Johnson v. Burns, 39 W. Va. 658 . The opinion by Judge Dent in Akers v. De Witt, 41 W. Va. 229 , does not seem to give this statute force to change much the rule of treatment of evidence in the appellate court on a motion for a new trial. I do not think it revolutionizes and tears down established rules in this matter, as. I said in the Johnson-JBurns case. But what is above said, will at least show that rarely, only in extreme cases, will this. Court reverse a jury trial on conflicting evidence. But even where there is not involved a conflict of evidence, but the-question is one of weight of evidence, this Court has said in many cases that “in Virginia and this state the courts have always guarded with jealous care the province of a jury. If the question depends on the weight of testimony or inferences and deductions from the facts proved, the jury, not the court, are exclusively and uncontrollably the judges. This, conclusion is based upon the well-established rule, that the jury are the sole judges of the evidence, the credibility of all admissible testimony, and the inferences from the facts and circumstances proved. ” State v. Cooper, 26 W. Va. 338 ; State v. Baker, 33 W. Va. p. 335. And this rule has been often said to apply with stronger force in this Court than in a circuit court. Grayson’s case, 6 Grat. 712; Sheff case, 16 W. Va. 307 . Why? Because the jury and judge saw the. *34 witnesses face to face and are much more competent to'judge of their veracity and demeanor and weight of their evidence than aré we. The opinion of Judge Faulkner, a judge of long experience and competency, is therefore better than that •of any judge on this bench. So is that of the jury. For this reason we said in Baker's case, 33 W. Va. p. 336, upon authority then regarded by the Court good, that “where a case depends on the tendency and weight of evidence, and the jury and judge who tried the case agree in the weight and influence to be given the evidence, it is an abuse of the appellate powers of this Court to set aside a verdict because the judges of this Court, from the evidence as it is written down, would not have concurred in the verdict.” Gilmer case, 42 W. Va. 52, 56, 57 ; Hill's case, 2 Grat. 594. Now, the corpus delicti is proven beyond question. It only remains to find whether the accused is excusable by way of self defense, or, if not excusable, what is the degree of his crime? Who will question that this is peculiarly a question for the jury dependant on the credit of witnesses and the weight of their evidence? State v. Welch, 36 W. Va. 690 . It does appear to me that this Court has taken up scales and not only passed on. the credit of witnesses, but undertaken to weigh their evidence with nicety just as a jury would. A circuit court can do this, but an appellate court cannot weigh evidence. Norfolk v. Spencer, 52 S. E. 310 , pt. 8; 14 Ency. Pl. &. Prac. 770.
I dissent because I cannot consent to defeat and frustrate the administration of criminal justice by overruling verdicts approved by circuit courts after full and fair trial, when there is much evidence to sustain the verdict, simply because this Court thinks the jury and judge erred. My understanding is that where different men may form different conclusions upon the weight of a mass 'of evidence, especially if credit of witnesses is involved and the evidence is conflicting, an appellate court should not annuli the trial. I venture to repeat, touching the force of verdicts, language in State v. Bowyer, 43 W. Va. 180 . “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 scrutinized Iris countenance, his demeanor, his 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 *35 of the trial — often silent, but potential, evidence of the real truth. That judge and those jurors would average with us, had we been present, in capacity to judge of evidence; and as we have nothing of the actual appearance of the trial, and only the evidence in cold type, they are vastly more competent than we to pass safe judgment upon the facts. We are not a jury. We have power — mere power — to discredit verdicts, but we must be cautious in so doing.
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 functions. The jury institution is sacred under our Constitution, and a verdict is to be highly respected. In long experience, I must say that, as a general thing, 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.” To same effect State v. Morgan, 35 W. Va. 260, 277 . It is not merely for this case that I write this dissent, but it is to express dissent against a growing tendency to depart from volumes of decisions and treat lightly verdicts approved by trial courts and overthrow them on insufficient grounds. A verdict of twelve men, as competent to' judge evidence as we, had we been present at the trial, confirmed by a judge, is overthrown by four men on evidence held as insufficient. Insufficient to prove what? Not the homicide. This is admitted. But to prove that the evidence is not sufficient to- prove murder in the second degree, but only voluntary manslaughter, a matter dependent on evidence on which a jury is peculiarly fitted to judge and entitled by law to judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8175794. Public record. Not legal advice.