
    People, Plaintiff and Appellant, v. Soto, alias Pantaleón, Defendant and Appellee.
    Appeal from the District Court of Mayagüez in a Prosecution for Murder in the Second Degree.
    No. 1182.
    Decided June 26, 1918.
    New Trial — Discretion ot Oourt — Appeal.-—Judicial discretion, rather than strict law, commonly determines whether or not to grant a new trial and new trials should be awarded more freely in criminal causes than in civil, and in criminal the more freely in proportion to the gravity of the punishment.
    The trial judge, as well as the jury, must be satisfied that the evidence as a whole is sufficient to sustain the verdict. Otherwise it becomes not only the proper exercise of a legal discretion but his duty to grant a new trial. And on appeal an order made either granting or denying such new trial will not be disturbed unless an abuse of discretion is made manifest.
    The facts are stated in the opinion.
    
      Mr. Salvador Mestre, fiscal, for the appellant.
    
      Messrs. Feliú and AlemaMy for the appellee.
   Mu. Justice Hutci-iison

delivered the opinion of the court.

After a jury trial, which resulted in a verdict of guilty of murder in the second degree, the district judge, feeling that the circumstantial evidence upon which the prosecution relied was not sufficient to sustain the verdict, set it aside and granted a new trial.

The People appealed from this order.

“Judicial discretion, rather than strict law, commonly determines whether or not to grant a new trial.” And “new trials should be awarded more freely in criminal causes than in civil, and in criminal the more freely in proportion to the gravity of the punishment.” 2 Bishop’s New Crim. Proc., pp. 1113 and 1106, sees. 1277 and 1273.

The trial judge, as well as the jury, must be satisfied that the evidence as a whole is sufficient to sustain the verdict. Otherwise it becomes “not only the proper exercise of a legal discretion but his duty to grant a new trial.” People v. Lum Yit, 83 Cal. 130, and cases cited. See, also, 2 Bishop’s New Crim. Proc., p. 1114, sec. 1278. And on appeal “An order made eitlier granting or denying such. new trial will not be disturbed unless an abuse of discretion is made manifest.” People v. Mallicoat, 149 Pac. 1000, and cases cited. See, also, 2 Bishop’s New Crim. Proc., p. 1098, sec. 1269; id., p. 1107, sec. 1274.

Inasmuch, as a new trial is to be had, we prefer not to discuss the evidence. It will suffice to say that a careful reading of all the testimony discloses no abuse of discretion. The order appealed from must be

Affirmed.

Justices Wolf and del Toro concurred.

Chief Justice Hernández and Justice Aldrey dissented.  