Opinion of the Court. the facts of the case have been fairly left to the jury upon a proper charge of the court, and they have twice found a verdict for the same party, each of which having been set aside by the court, if the same party obtain another verdict in like manner, it shall not be disturbed. But this act did not intend to prevent the court granting new trials for error in the charge of the court to the jury, for error in the admission of, or rejection of testimony, for misconduct of the jury, and the like." Turner v. Ross, 1 Humphrey, 16 (1839); East Tennessee &c. Railroad Co. v. Hackney, 1 Head, 169 (1858). In Knoxville Iron Co. v. Dobson, 15 Lea, 409, 416 (1885), it is said that "this court has uniformly held that the statute was intended to limit the power of the courts over the findings of fact by the jury upon regular proceedings and a correct charge. If the court in the same case has set aside, upon the motion of the same party, the verdicts of two juries, upon the ground that the evidence is not sufficient to sustain them, the power of the court is at an end to grant another new trial to the same party upon the facts or merits. . The statute does not prevent the granting of new trials for errors committed by the court, or for improper conduct which may vitiate the verdict." Wilson v. Greer, 7 Humphrey, 513. In Tate v. Gray, 4 Sneed, 591, 594, it was held that it is the duty of the circuit judge "to grant a new trial in all cases where he believes the preponderance of the proof is decidedly against the finding;" and that "although by the theory of our system the jury are the proper and exclusive triers of the facts, yet the law requires the circuit judge, who is presumed to have more practice and skill in the investigation of truth, to set aside their verdicts, whenever in his opinion they have disregarded or misconceived the force of proof, that a new trial may be had." From these decisions it is clear that in Tennessee, as elsewhere, although the jury are the judges of the facts, yet the judge has power to set aside the verdict when, in his judgment, it is against the weight of the evidence, but that that supervisory power cannot be exercised under the statute when the triers of the facts have three times determined them Opinion of the Court. the same way. This manifestly refers to a state of case where, in the opinion of the judge, the verdict should have been otherwise than as rendered, because of the insufficiency of the evidence to sustain it, but not to a case where there is no evidence at all. It is the settled law of this court that "when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant;" Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482; Gunther v. Liverpool &c. Ins. Co., ante, 110; while, on the other hand, the case should be left to the jury, unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Dunlap v. Northeastern Railroad Co., 130 U. S. 649, 652. In such case the practice of a demurrer to the evidence can be resorted to, or a motion to exclude the evidence from the jury, or to instruct them that the plaintiff cannot recover, which motions are in the nature of demurrers to evidence, though less technical, and have in many of the States superseded the ancient practice of a demurrer to evidence. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359. Such a motion, like the demurrer to evidence, admits not only what the testimony proves, but what it tends to prove. The ultimate facts, in other words, are admitted. In Bacon v. Parker, 2 Overton, 55, 57, it was decided that an involuntary non-suit could not be ordered, but a demurrer to evidence was allowed in Bedford v. Ingram, 5 Haywood (Tenn.) 155; and it must be that as the duty devolves upon the judge "to declare the law," he may be requested, in some form, to advise the jury that the plaintiff cannot recover when that is the conclusion of law arising upon the record, and should do so though not specifically directed. It is true that it was held in Kirtland v. Montgomery, 1 Swan (Tenn.) 452, that it was error for the trial judge to assume to answer both the questions of law and the questions of fact involved in that case, which was one, however, in which there was evidence Opinion of the Court. raising questions of fact to be determined; and in Ayres v. Moulton, 5 Coldwell, 154, it was held error in the circuit judge to charge the jury that from the facts as proven the plaintiffs were "entitled to recover of the defendant the sum sued for," because "the facts to be deduced from the evidence must be left exclusively to the jury." But that also was a case where it evidently did not follow from the ultimate facts that the plaintiffs were entitled as matter of law to recover as stated. To the same effect is Case v. Williams, 2 Coldwell, 239, where it was ruled that if the charge of the trial judge " be equivalent to a determination of the facts involved, a new trial will. be granted." This is and must be so, whenever there are deductions of fact to be drawn by the jury, but where that is not the case, although a direct instruction to return a verdict for the defendant may not be in accordance with the practice in Tennessee, yet the decisions show that the question whether a recovery can be had at all or not, can be presented in some appropriate form in that State. Thus, in Whirley v. Whiteman, 1 Head, 616, it is said: “In trials by jury, the court is to decide the questions of law; and the jury, questions of fact; what are called mixed questions, consisting of both law and fact, as questions in respect to the degree of care, skill, diligence, etc., required by law in particular cases, are to be submitted to the jury, under proper instructions from the court, as to the rules and principles of law by which they are to be governed in their determination of the case. The truth of the facts and circumstances offered in evidence, in support of the allegations on the record, must be determined by the jury. But it is for the court to decide, whether or not those facts and circumstances, if found by the jury to be true, are sufficient in point of law, to maintain the allegations in the pleadings. And this must be done in one of two modes; either the court must inform the jury hypothetically whether or not the facts which the evidence tends to prove, will, if established in the opinion of the jury, satisfy the allegations; or, the jury must find the facts specially, and then the court will apply the law and pronounce whether or not the facts so found are sufficient to support the averments Opinion of the Court. of the parties. 1 Starkie's Ev. 447. The principle of law, by which the jury must be governed in finding a verdict, cannot be left to their arbitrary determination. The rights of parties must be decided according to the established law of the land, as declared by the legislature or expounded by the courts, and not according to what the jury in their own opinion may suppose the law is, or ought to be. Otherwise the law would be as fluctuating and uncertain as the diverse views and opinions of different juries in regard to it." Memphis Gayoso Gas Co. v. Williamson, 9 Heiskell, 314, 341; Gregory v. Underhill, 6 Lea, 207, 211. Tested by this rule, whenever the statute is applied, it must be upon the assumption that although the court would have found a different verdict, because of the weakness of the evidence, yet there was some evidence tending to establish the cause of action. Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law, and the statute, in the interest of the termination. of litigation, makes that imperative which would otherwise be discretionary. For, decisions under similar statutory provisions see Silsbe v. Lucas, 53 Illinois, 479; Ill. Cent. Railroad Co. v. Patterson, 93 Illinois, 290; Carmichael v. Geary, 27 Indiana, 362; Boyce v. Smith, 16 Missouri, 317; Wildy v. Bonney's Lessee, 35 Mississippi, 77; Rains v. Hood, 23 Texas, 555; Watterson v. Moore, 23 W. Va. 404. We can perceive nothing in the statute thus applied which amounts to an arbitrary deprivation of the rights of the citizen, and concur with the Supreme Court of Tennessee that this act, which had been in force for more than sixty years before the adoption of the Fourteenth Amendment, was not invalidated by it, while the Fifth Amendment had no application whatever. The statement in the judgment of affirmance is that "the court adjudges that there is no evidence to support the verdict of the jury;" and if this were taken literally, it would follow that no recovery could be had, as matter of law; and we therefore suppose that the language used indicates simply the opinion of the court that the jury ought not to have found Counsel for Parties. the verdict that they did, and that the judgment of the court below, refusing to grant a new trial upon the facts, would have been reversed, but for the existence of the statute, which made it error to award it. Knoxville Iron Co. v. Dobson, 15 Lea, 409, 418. Assuming that the validity of the statute was drawn in question, yet there was clearly color for the motion to dismiss, and the case may be disposed of upon the motion to affirm. That motion is sustained, and the judgment is accordingly Affirmed UNITED STATES v. LACHER. CERTIFICATE OF DIVISION IN OPINION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 654. Submitted March 28, 1890.- Decided April 14, 1890. Section 5467 of the Revised Statutes creates two distinct classes of offences: the one relating to the embezzlement of letters, etc.; the other relating to stealing their contents. Sections 3891 and 5467 of the Revised Statutes are to be construed together -the offences of secreting, embezzling or destroying mail matter which contains articles of value being punishable under the one, and like offences as to mail matter which does not contain such articles being punishable under the other. When there is an ambiguity in a section of the Revised Statutes, resort may be had to the original statute from which the section was taken, to ascertain what, if any, change of phraseology there is, and whether such change should be construed as changing the law. Penal statutes, like all others, are to be fairly construed according to the legislative intent, as expressed in the act. The court again declines to answer a certified question which contains no clear and distinct proposition of law. THE case is stated in the opinion. Mr. Assistant Attorney General Maury for the plaintiff. Mr. Benjamin Barker, Jr., for the defendant. |