The opinion
BRAND, C. J.,
concurring.
I concur in the decision and in the able opinion of Mr. Justice Lusk in his dealing with the facts and the law. Were I a juror duly empaneled and sworn to try the case in the circuit court and upon the present record I should no doubt be impressed by the argument in behalf of the defendant’s case which appears in the dissenting opinions. Being mindful, however, of the limitations imposed by the constitution upon the scope of judicial review, I am unmoved by the recital of the testimony which is suggestive of innocence but which ignores much that tends to show guilt. My sympathies are strongly enlisted in this case, but it is of the essence of the judicial function that judgment must not be swayed by interest.
“* * * no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict. * * * ” Constitution of Oregon, Art VII, § 3.
Stripped of fine-spun argument concerning the “theory of the ease”, the question which the jury de *215 cided and which, only a jury should decide is—did the defendant kill her husband? I am unable to “affirmatively say there is no evidence to support the verdict.”