
    (78 South. 805)
    JOHNSON v. STATE.
    (5 Div. 702.)
    (Supreme Court of Alabama.
    May 9, 1918.)
    Criminal Law &wkey;935(l) — New Trial — Weight oe Evidence,.
    In a prosecution for murder, where there was evidence that accused shot deceased tinder circumstances excluding any possible excuse or justification, and there was evidence contradictory thereto, the decision of th'e jury depending on the credibility of the evidence, the trial court would not be held in error in overruling a motion for new trial. „
    Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.
    Ben Johnson was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Strother & Hines, of LaFayette, for appellant. F. Loyd Tate, Atty. Gen., for the State.
   McCLELLAN, J.

The defendant (appellant) was convicted of murder in the second degree. The victim was George Bozeman. The only insistence for error in the brief of the able counsel for the appellant is that the motion for a new trial should have been granted; this upon the ground that “the preponderance of the evidence against the verdict is so decided that it would be wrong and unjust to let this verdict stand.” The whole evidence has been carefully considered. There was abundant support in the evidence of the conclusion that the appellant shot and killed George Bozeman under circumstances excluding any possible excuse or justification for the act. There was evidence contradictory of this theory of unpalliated guilt; but it was the jury’s function to decide the controverted issue. The jury and the trial judge saw and heard the witnesses. The issue’s decision'depended upon the credibility to be accorded the conflicting testimony submitted. It cannot be here affirmed that the court below erred in overruling the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 South. 738.

There is no error in the record.

Affirmed.

ANDERSON, O. J., and SAYRE and GARDNER, JJ., concur.  