The San Francisco call., 1896-03-08

legal discretion, but his duty, to grant a new
trial" People vs.. Baker, supra; Peopie vs..
Ashnauer, AZ Cal. SO; People vs. Hotz., 10 Cal.
241.)
Nor does it affect the question that the evil
dence in the case may have a legai zen
is to be established beyond reasonaoie
doubt; and while there may be some evioence
to support each fact, this does not s.gnliy INA enat
it is necessarily such as 10 satisfy the CON
science of the Judge that q case is MADE whlch
warrants conviction.
APPLYING these principles to the record be-
fore us we cannot say that the learned Judge
of the court below improperly exercised his
discretion in the premises.
In this view il is neither pertinent nor
proper for us to review or comment upon the
evidence since another trial must be had.
Nor for the same reason is 1t proper at this
time to indicate our views upon the point
urged by defendant, that the evidence is in
sufficient in law to warrant conviction.
That point should not be anticipated, since
upon another trisl the evidence may be so
essentially different that it may not arise.
The order is affirmed. VAN FLEET, J.
We concur:
HARRISON, J.
GARoUTTE, J.
az can easily see how this opinion is re-
garded with disfavor by the civil lawyers"
said Carroll Cook; "but the man wrong
fully accused of crime has nothing to fear
from it. The discretion accorded the trial
JuOpt, even WlSn dS DIOdoly pQG as III
these words of Justice Van Fleet, can
never be employed against a defendant,
but only as an estoppel in the case of
verdict of guilty when, in the discretion of
the court, that verdict is unjust from any
reason whatever.
"And this has long been the practice in
this State and elsewhere. There is a case
cited as early as 1856, in the sixth Cali
fornia. This was the case of People
sur,
There was a conflict in the evidence. The
Supreme Court granted a new trial, and in
doing so said:
The story of the woman uhe prosecuting
witness) is so improbable in itself as to warrant
us in the belief that the verdict was rendered
more upon popular excitement than upon the
facts. conviction upon such evil
denee would be blot upon the Jurisprudence
OF the court and q libel upon jury trials.
again, in the fifty-frst California, in
1878, under almost similar circumstances,
the Supreme Court, in granting new
trial, said:
Her (the complaining wftness) story Is so
grossly improbable upon the face of 1t as 10
render the inference irresistible that the jury
must have been under the influence OF passing
prejudice.
"The principle is further illustrated"
said Mr.. Cook, ''in some of the cases cited
before the Supreme Court recently in the
case of the People against Flood. If you
remember, Flood was convicted by the
jury, but the Judge set aside the verdict
and granted a new trial. From this find
ing the District Attorney appealed TO the
Supreme Court One of the cases cited in
support of the Superior Judges ruling
was that of Curtis VS.. Starr & Co., in S5
California, wherein the Supreme Court
said:
He introduced some testimony tending to
show this and the jury entirely believed it.
Butitmust not be presumed that the Judge did
not; and, If he did not, ii was his duty TO grant
q new trial.
The Judge should set aside the verdict
whenever he is not satisfied with it
upon the evidence, and his order in that
regard will not be disturbed on appeal
if the evidence is substantially conflict
ing. The learned counsel is in error in
surprising that this rule is confined to
cases tried without a jury.
Another case cited there was that of In
re Smith, 9S California, wherein the Su-
preme Court held that:
1t is sufficient for us to know that there
is a substantial conflict in the evidence
and that the Judge, who was entirely
familiar with all its details and in a
much better position to give weight to
all its facts, has exercised the discretion
conferred upon him by granting.a new
trial.
Now it appears to me-" continued Mr..
Cook, "that good deal of this language is
not very different from that used by Justice
Van Fleet in this decision.
But what is to prevent trial Judge
from exercising this discretion against a
defendant?
"a constitutional inhibition in crimina,
cases. nothing in civil cases. The con-
stitution says that No person shall be
twice put in jeopardy for the same offense.'
Now, if q trial Judge should interfere in
any way toward securing the conviction
of a defendant, well, that would be suf-
ficient grounds for q reversal-that is all
there is to that. He could not set aside
verdict of acquittal. To hold that would
be preposterous. 1t is impossible to set
aside verdict OF acquittal in the United
States. The Federal constitution prohibits
it. The most an unfair or prejudiced
Judge can do to harm defendant is to
insinuatlngly influence jury before ver-
dict, and this can be done IN any event,
with or without the discretionary powers
as laid down in Van Fleets opinion. The
remedy for it is reversal by the Supreme
Court.
at is fact that the trial Judge, by all
the authorities and by all the rules OF
criminal procedure, has no right, in a
criminal case, to say anything which
would even let the jury suspect that he
holds an opinion on the facts at issue.
This opinion of Van Fleets relates solely
to the Judges power to set aside con-
viction when, in his judgment, the facts
were not sufficient to warrant such ver-
DICT
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