Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/46

 Court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the Court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court. Provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower Court.

It will be seen that there is apparently a conflict between the provisions of the first sentence of Section 3, relating to the effect of a verdict by a jury in an action at law, and the power and duty of the Supreme Court on an appeal when there is attached to the bill of exceptions by either appellant or respondent, "the whole testimony, the instructions of the Court to the jury, and any other matter material to the decision of the appeal."

Under the familiar rule of construction that where, in a statute, there are apparently conflicting provisions, they must be reconciled if it is possible to do so. Section 3 should be construed tO' mean that the verdict of a jury cannot be re-examined by any Court inferior to the Supreme Court, and only by the latter when the whole record is before it. Thus, a Circuit Court cannot grant a new trial if there be a verdict of a jury, with a scintilla of evidence to support it, even when such a verdict is excessive or outrageous or given under prejudice or passion; probably, not on account of newly discovered evidence. Once a verdict, always a verdict, until it reaches the Supreme Court. The sufficiency of the verdict will apply to appeals to the Circuit Court where there is a jury trial in the County Court or in a Court of a Justice of the Peace. It would seem that practically there can be no appeal to the Circuit Court, when there has been a jury trial in an inferior Court. The testimony is not transmitted in such appeals to the Circuit Court. But the provisions of the first sentence as to the conclusions of a verdict by a jury do not apply to a criminal case, for the last sentence of Section 3 is:

Provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case