1. It cannot be denied that the verdict in this case is not supported by evidence of much weight. True, the witness does testify that he did, in fact, on the night in question, recognize the prisoner as the person he found under the bed, and who assaulted and beat him, and in all probability stole the missing articles. But his statements made that very night to the policeman, and to the other persons to whom he told the story, as well as his statements made next day to Lynch, and his extraordinary neglect to inform the police that night or next day who the burglar was, do certainly throw strong *251doubt upon what he says. Still, it is for the jury 'to weigh the evidence, and whilst, as a juryman, I should not convict a man on any such evidence, yet, as two juries have in fact done it, and the Judge has refused to interfere, we do not feel authorized to do so. The jury is the tribunal provided by law to pass upon the facts, and especially to consider the credibility of witnesses, and if they believe one man instead of three, or credit a story of a witness that does not appear to us probable, it may be that there was something in the manner of the witness or in his character, which justifies them in the conclusion.
2. The motion based on the newly discovered testimony is not before us. The Judge has never passed upon it. It is still pending. Having been made during the term at which the new trial was refused, it is not too late, even though the bill of exceptions was filed, and it was not, perhaps, proper for the Judge to pass upon it while the bill of exceptions was undisposed of, yet, as the motion was made during the term, it is a pending motion.
We do not undertake to say what the Judge ought to do with this motion. We will, however, say that we think the verdict very weakly supported by the evidence, and that if there be no rule of law in the way, the principles of justice would indicate that any new evidence of weight, discovered in good faith since the trial, ought to be seized upon to grant it.
Judgment affirmed.