
    WILLIS v STATE ex BURTON
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2402.
    Decided Sept 26, 1934
    Howard H. Gillard, Columbus, for plaintiff in error.
    Joseph Bowman, Columbus, for defendant .in error.
    MONTGOMERY, J, (5th Dist) sitting by designation.
   OPINION

By THE COURT

Submitted on application of plaintiff in error for rehearing on the ground (1) that the verdict is not supported by the evidence and is not supported by sufficient evidence.

The ground urged in the application for rehearing is the specific claim which was made and urged by counsel in the original submission and which the court considered and determined in its former decision.

We readily concede that there is much to support the claim of counsel for plaintiff in error that the greater number of witnesses supported the theory of plaintiff in error and it can likewise with much force be urged that the more credible testimony likewise supports the position of plaintiff in error in this court. However, we would not feel justified in' setting aside the determination of the jury upon disputed evidence from which it was the jury’s province to sift and determine the truth. The test which we must apply is not what we would have done had we been passing on the facts in dispute but whether or not the jury exercising its prerogative of weighing the testimony and determining its credibility, clearly violated its obligation. We cannot so hold.

The application will therefore be overruled.

HORNBECK, PJ, BARNES and MONTGOMERY, JJ.  