Referring to the opinion of this court by Judge Prendergast in the case of Hubbard v. State, 147 S.W. Rep., 260, the District Attorney quotes: "The jury of twelve fair and impartial jurors, after hearing all of the evidence, seeing and observing all of the witnesses and the manner of their testifying, believed the state's witnesses, and that the appellant was guilty beyond a reasonable doubt. The learned trial judge also heard all the testimony, saw and heard the witnesses, and, by overruling the motion for a new trial, based on these grounds also held that the testimony was sufficient to sustain the verdict. Under these circumstances, we also sustain the verdict."
That this is not the rule which governs in all cases is manifest from the legislative declaration in Art. 939, C.C.P., which reads as follows: "The court of criminal appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts; but, when a cause is reversed for the reason that the verdict is contrary to the weight of evidence, the same shall in all cases be remanded for new trial.
The present case exemplifies the wisdom of the statute. At least, such is the opinion of this court upon whom the responsibility of the ultimate decision rests.
With due deference to the opinion of the District Attorney to the contrary, the conclusion revealed on the original hearing comports with our conception of the law applicable to the present case.
The motion is overruled.
Overruled. *Page 55