
    Clark v. State
    In Banc.
    April 11, 1949.
    (39 So. (2d) 783)
    (40 So. (2d) 591)
    In Banc.
    May 23, 1949.
    
      Jesse M. Byrd and Ben Stevens, for appellant.
    R. 0. Arrington, Assistant Attorney General, for appellee.
   Roberds, J.

The points raised on the suggestion of error were all raised and argued on the original appeal. Nevertheless we deem it advisable to respond to one of the contentions urged again on the suggestion of error. In responding to the contention made on the appeal that the evidence was not sufficient to support the verdict of guilty we used this language [39 So. (2d) 784]: “While the evidence was sufficient to sustain the verdict, we do not examine the assignment based upon a contrary contention, there having been no motion for a new trial based upon such ground.”

Counsel say they have found no statute or decision holding that before a litigant can avail of the contention the verdict is against the weight of the evidence that it is essential that contention be embodied in a motion for a new trial in the lower court and be passed upon by the trial judge, and, they add, “. . . it is notable that the court in its opinion cited none so holding. ’ ’ The reason we cited no authority was that this has been the established and settled rule in this state for many years, so known and recognized, we thought, by the bench and bar generally. The reason underlying the rule is that the trial judge cannot be put in error as to a matter which was never presented to him for decision. It applies to both civil and criminal cases. If counsel desire to verify the existence of the rule and enlighten themselves upon the subject they might read Justice et al. v. State, 170 Miss. 96, 154 So. 265; Sones v. State, Miss. 155 So. 188; Judon v. State, Miss., 155 So. 428; Bryant v. State, 172 Miss. 210, 157 So. 346; State Highway Commission v. Chatham et al., 173 Miss. 427, 161 So. 674; P. D. Spradling v. State, Miss., 163 So. 144; Vanderslice v. State, Miss. 166 So. 372; Johnson v. State, Miss., 168 So. 479; Ephraim v. State, Miss., 174 So. 815; Byrd v. State, 179 Miss. 336, 175 So. 190; Flynn v. Kurn et al., 183 Miss. 413, 184 So. 160; Moore v. State, Miss., 194 So. 921; Manning v. State, 188 Miss., 393, 195 So. 319; Cunningham v. State, Miss., 200 So. 248; McDougal v. State, 199 Miss. 39, 23 So. (2d) 920; Holmes v. State, 201 Miss. 509, 29 So. (2d) 312; Anderson v. State, 203 Miss. 850, 33 So. (2d) 790.

Suggestion of error overruled.  