dissenting:
I dissent from the conclusions on which the reversal of this case is based. I think that the evidence is sufficient to sustain the verdict.
True, the evidence is conflicting and in some aspects, the state’s evidence may be unsatisfactory. Nevertheless, the evidence adduced by the state is not incredible. The jury saw and heard the witnesses. “A verdict based on conflicting evidence, and upon inferences proper to be drawn from all the facts and circumstances, will not be disturbed by this court, unless there is such a preponderance against the verdict as will warrant the conclusion that it was rendered as the result of passion, prejudice or some ulterior motive on the part of the jury.” State v. Padgett, 93 W. Va. 623, 117 S. E. 493; State v. Barker, 92 *657W. Va. 583, 115 S. E. 421. See State v. Meadows, 124 W. Va. 412, 414, 20 S. E. 2d 687; State v. Kincaid, 104 W. Va. 396, 397, 140 S. E. 338.
“Where the testimony on an issue of fact in a criminal case is conflicting, it is for the jury to determine the weight to be attached to the reasonable inferences that can be drawn from all the facts and circumstances in evidence, and their verdict will not be set aside by the appellate court unless plainly wrong.” State v. Magdich, 105 W. Va. 585, 143 S. E. 348. Point 1 of the syllabus of State v. McLaughlin, 91 W. Va. 654, 114 S. E. 278, is to the same effect.
In the opinion in the case of State v. Toler, 129 W. Va. 575, 582, 41 S. E. 2d 850, the following language appears: “It is peculiarly within the province of the jury to weigh the evidence in criminal cases, and every element thereof, including that of self-defense. The verdict of the jury in a criminal case will not be set aside unless it is manifestly against the weight of the evidence, and it will not be set aside merely because there are conflicts in the evidence. A multitude of cases which sustain these propositions could be cited, but the following will suffice: State v. McMillion, supra [104 W. Va. 1, 138 S. E. 732]; State v. Magdich, 105 W. Va. 585, 143 S. E. 348; State v. Hamrick, 112 W. Va. 157, 163 S. E. 868; State v. Bowles, supra [117 W. Va. 217, 185 S. E. 205]; State v. DeBoard, supra [119 W. Va. 396, 194 S. E. 349]; State v. Gunter, supra [123 W. Va. 569, 17 S. E. 2d 46]”.
In cases where there is substantial conflict in the testimony, the credibility of the witnesses is for determination of the jury. I think the Court, in this instance, has gone counter to a number of cases decided in this jurisdiction, some of which are cited herein, and thus has invaded the province of the jury. The Court, by setting aside the jury verdict in the instant case, is passing on the credibility of the witnesses’ testimony who testified on behalf of the state.
For the above reason, I would affirm the judgments of *658the Intermediate and Circuit Courts of Kanawha County.
I am authorized to say that Judge Browning joins in this dissent.