The opinion
CARTER, J.
I concur in the conclusion reached in the majority opinion and generally in the reasoning upon which it is based. I do not, however, concur in the implication that People v. Haeussler, ante, p. 252 [ 260 P.2d 8 ], is distinguishable from Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ], and it is my view that the same rule is applicable to the Haeussler case as was applied by the Supreme Court of the United States in the Rochin case, and the Haeussler case should have been reversed by this court. However, for the reasons stated in the majority opinion such rule is not applicable to this case.
Since this is the first case since I have been a member of this court in which the inept statement is made that in passing on a motion for a new trial “the Court sits as a thirteenth juror,” I am constrained to call attention to the absurdity of this statement. There is not a scintilla of logic or common sense in the statement that “the Court sits as a thirteenth juror” in any judicial proceeding. In the first place the judge is not the court but is the officer who presides over the court. The court consists of not only the judge but also of the various attaches such as the clerk, bailiff, reporter, etc. and even counsel who participate in the court proceeding. (14 Am.Jur., p. 247, § 2.) A thirteenth juror would have no more power than any other juror — a voice and a vote in the formation of the verdict — while the court, in passing on a motion for a new trial, has the power to overrule the entire jury, set aside its verdict and grant a new trial in whole or in part before another jury. No such power ever has been, and I dare say never will be, vested in a “thirteenth juror.” *636 There should be no doubt whatever, that under the traditional rule, a trial court in passing on a motion for a new trial made upon the ground of the insufficiency of the evidence to support the verdict, has the power, and it is its duty to vacate and set aside the verdict and grant a new trial in every ease in which it is of the opinion that a fair and just verdict has not been reached. And certainly, if the court entertains a serious doubt as to the credibility of witnesses for the prosecution whose testimony is essential to establish the guilt of the defendant, this power should be exercised and a new trial granted. From the remarks of the trial judge in the case at bar it strikes me that this is a case in which this power should have been exercised.