The opinion
Clark, C. J.,
concurring in dissent I concur in what is so clearly and forcibly said by Mr. Justice Douglas, and I regret that I can not add emphasis to the views stated by him and by Judge Bynum in Wittkowsky v. Wasson. “Juries are the sole and exclusive judges of the facts,” and judges have no right to intrude into that province. The maintenance of this principle of the law inviolate is guaranteed by the Constitution, and its preservation is as necessary now as at any time in the history of our race for the protection of the liberty and the property of the humblest citizen. The Act of 1796 (now Code, 413) forbidding the trial judges to intimate any opinion upon the weight of the evidence is *924 worse than useless if the appellate court can weigh the evidence. The trial judge who at least sees the bearing and demeanor of the witnesses upon the stand, and knows the surrounding circumstances (advantages which are denied to us) can far better judge of the weight and sufficiency of the evidence than an appellate court. Why deny him, so rigorously an expression of opinion which the jury is not compelled to accept, if the appellate court can weigh the evidence and hold it insufficient to justify the conclusion at which the jury have arrived, and in a case, too, in which the trial judge has not thought he ought to exercise his undoubted prerogative to set the verdict aside, as he would have done, if he deemed it contrary to justice? If the trial judge sets the verdict aside, the very same evidence may be submitted to another jury for its consideration; whereas if the appellate court adjudges the evidence insufficient, the appellee not only loses his verdict, but all opportunity to try his cause by a jury at all, unless he can get additional evidence.
Because there is no power anywhere to review the action of an appellate court in holding that there was not sufficient evidence to justify a verdict which has been rendered, -is an additional and the strongest reason why an appellate court should never so hold. So important a matter is this that the Court of Appeals is expressly forbidden by the Constitution of New York to set aside a verdict even on the ground that there is no evidence when the court below is unanimous that there was evidence, and our Superior Court must be unanimous, there being only one judge. The time-honored limitation in this State, within which an appellate court can set aside a verdict, is when “there is no evidence beyond a scintilla.”