State v. Packwood

Napton, Judge, delivered the opinion of the court. It is not the province of this court to weigh evidence, nor has it been the practice to interfere with that discretion which has been entrusted to circuit judges over the verdicts of juries. I am not aware, however, that the court has in any case entirely repudiated all power over the subject, although I believe the tendency of recent decisions has been in that direction. . Without undertaking to define the precise limits within which this power may be exercised, we are constrained to say that the verdict in this case is unsupported by the evidence, and can not be allowed to stand. The facts were, that the deceased went to the house of one of his tenants, where he accidentally learned the prisoner was, with the intention of beating him with a stick, which he had picked up before he started; that he ordered the prisoner to leave, which order the prisoner immediately set about to obey by starting away through a door opposite to where the deceased stood with his stick or club ; that he then commanded the prisoner to turn and pass through the door where the deceased stood, and the prisoner did so, and as he passed through, the deceased commenced striking him, the prisoner moving off rapidly; that the deceased followed the prisoner as he ran, all the time inflicting heavy blows upon him, and continued to beat him for from forty to eighty yards, when the prisoner turned and inflicted a single blow with a knife which proved fatal. The prisoner continued running and was shot in the back or side by a brother-in-law of the deceased, who, together with his father, had accompanied the deceased when he started to attack the prisoner. There was [364] evidence of threats before and acknowledgements of malice after the affray; but it is apparent, without any comments upon the details of the testimony, that this was not a case of murder in the first degree. The third instruction was not warranted by any testimony in the case, and should not have been given. "We have been unable, after a very careful examination of the bill of exceptions, to discover any evidence whatever that the prisoner went to the house of the deceased’s tenant with the intention of provoking a difficulty; much less that he did provoke a difficulty after he got there. On the contrary, the witnesses for the State are positive and clear and uncontradicted that the prisoner neither used any language or did any act, or in any way whatever, actively or passively, so conducted himself as to provoke a difficulty. In a case of this importance, where human life is at stake, we feel it to be an imperative duty to interfere. A bare perusal of the evidence will make it apparent that the State did not make out the crime of which the prisoner was charged and convicted, and that in truth no testimony was given which could reasonably lead to such a conviction. We shall therefore reverse the judgment and order a new trial. Judge Richardson concurring.; Judge Scott dissenting.