The opinion
CARLAND, Circuit Judge
(dissenting in part). This case is here on writ of error. It is elementary that only questions of law may be considered. The question whether -there is substantial evidence to support the verdict is a question of law. I concur in the result reached by tire majority, for the reason that there is no substantial evidence to support the verdict Upon some of the material issues. There are, however, certain propositions of law stated in the opinion of the majority in which I am unable to concur. The propositions referred to are as follows:
“Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt it is the duty of the appellate court to reverse a judgment against him.”
This statement of the law received the approval of this court in Union Pacific Coal Co. v. United States, 173 Fed. 737 , 97 C. C. A. 578 . In view of the learning and ability of the judges who rendered the decision in the case cited, and of my Brothers who concur in the majority opinion, it is with some hesitation that I dissent from the propositions stated. Regarding the propositions, however, as fundamentally erroneous, I briefly state the reasons for my dissent. The •first proposition is as follows:
“Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt it is the duty of the trial judge to instruct the jury to return a verdict for the accused.”
This rule, if enforced, in my judgment would constitute the trial judge the trier of the facts in every criminal case. It is urged in support of the same that it presents to the trial judge the question as to whether there is substantial evidence to support a verdict of guilty. I do not think this is so. In order for the trial judge to determine whether there is substantial evidence of 'facts which exclude every other hypothesis but that of guilt, he must necessarily pass upon the weight of the testimony, and this includes the passing upon the credibility of the witnesses. As stated, the proposition contended for is equivalent to saying that, unless the trial judge believes the defendant guilty beyond a reasonable doubt, he must direct a verdict of acquittal. Certainly this is not the law.
The next proposition is as follows:
*795 “ * * * And where nil tlie substantial evidence is ns consistent with innocence as with guilt it is the duty of the appellate court to reverse the judgment against him.”
Iii view of the undoubted law that on a writ of error this court is limited to the consideration of questions of law, I am of the opinion that this rule of law is unsound. To determine whether all the substantial evidence in the case is as consistent with innocence as with guilt is to determine a question of fact. P'or illustration, suppose there are five witnesses in a case who testify to facts tending to show guilt, and the very same number of witnesses should testify directly contrary to facts tending to show innocence, may this court reverse the case because the evidence is as consistent with innocence as with guilt — surely not, for in order to determine whether the evidence is as consistent with innocence as with guilt this court must weigh the evidence, and there is included in this proceeding the determination of the credibility of the witnesses. In determining whether there is substantial evidence to support the verdict, the court does not pass upon a question of fact, but simply determines whether there is substantial evidence to support the verdict, regardless of its weight or credibility. I deem the keeping of court and jury within their legitimate spheres of sufficient importance to justify this dissent. The explanation of what the language which I object to means as set forth in the majority opinion demonstrates, in my opinion, that it would be well to omit the language objected to.