concurring. For all practical purposes there is no distinction between the mistrial ordered here and the new trial favored by the presiding superior judge. There is, therefore, no meaningful basis for a dissent in this matter. Accordingly, I concur in the result.
Regardless of the above, however, I believe a ruling on the sufficiency of the evidence to support a verdict is one of law alone; it is not, in my judgment, a mixed question of law and fact. All the evidence was in. Both the presiding judge and the assistant judge formed their respective opinions based on identical evidence; there are no questions of fact outstanding at this point. The sole question to be resolved on the motion following the verdict was whether that evidence, which I reiterate, was the same for the consideration of both judges, was sufficient. Given that fact, I return to my original premise that the ruling to be made called for the resolution of an unmixed question of law.
In my view we cannot go on forever avoiding the question raised here, unpleasant as it may be to face it. That question involves the authority of assistant judges to rule on questions of law in civil cases. Here, I believe we are once again evading an issue that is before us clearly, and must, inevitably be faced some day by this Court. In my judgment it could, and should be resolved, one way or the other, through the medium of this case. See, e.g., State v. Dunkerley, 134 Vt. 523, 526-27, 365 A.2d 131, 133 (1976) (Billings, J., concurring),