State v. Gilkerson

Per Curiam. The journal entry of the Court of Appeals, when read in the light of its opinion (see Andrews v. Board of Liquor Control [1955], 164 Ohio St. 275, paragraph four of the syllabus), indicates that the Court of Appeals reversed the judgment of conviction for first degree murder because of its determination that the finding of premeditation necessarily involved in that judgment was against the weight of the evidence. The evidence in this case is such that the trier of the facts could have found either for the state or for the defendant on the question of premeditation. In such an instance, the Court of Appeals has a right to determine that there is insufficient credible evidence to sustain a finding against the defendant on that issue and may in its discretion grant not more than one new trial for that reason. See State v. Robinson (1955), 162 Ohio St. 486; State v. Geghan (1957), 166 Ohio St. 188. Where a trial is not to a jury, a majority of the Court of Appeals may reverse a judgment on the weight of the evidence. Hnizdil v. White Motor Co. (1949), 152 Ohio St. 1; Section 6, Article IV, Constitution of Ohio. Judgment affirmed. Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert and Brown, JJ., concur.