
    [No. 21632.
    Department Two.
    May 9, 1929.]
    The State of Washington, Appellant, v. Perrin Cornell, Respondent.
      
    
    
      J. A. Adams, for appellant.
    
      George E. Grandell and A. N. Gorlin, for respondent.
    
      
      Reported in 277 Pac. 458.
    
   Parker, J.

The defendant, Cornell, was charged by information filed in the superior court for Chelan county with the offense of unlawfully having in his possession a narcotic drug, which drug had been unlawfully acquired by him in Chelan county. Trial in the superior court, sitting with a jury, resulted in a verdict finding Cornell guilty as charged. His counsel then moved for a new trial upon the ground, among others, of “insufficiency of the evidence to justify the verdict.” This motion was, by the court, granted, and an order entered accordingly, awarding Cornell a new trial, and specifically reciting the granting of the motion to be upon tbe ground of “insufficiency of tbe evidence to justify tbe verdict.” Tbe state bas appealed from that order to tbis court.

Since near tbe beginning of our statehood, a party to a civil action bas bad tbe right to appeal to tbis court from an order of tbe superior court, favorable to bis adversary, “which grants a new trial.” Eem. Comp. Stat., § 1716, subd. 6. Tbis court bas repeatedly held that tbe granting of a new trial upon tbe grounds stated in tbe motion and order here in question, rests in tbe discretion of tbe trial court, and that tbe exercise of such discretion will not be disturbed upon appeal, except there clearly appear an abuse of discretion on tbe part of tbe trial court in granting such motion. Tbe following of our comparatively recent decisions, and many others therein noticed, are to that effect: Getty v. Hutton, 110 Wash. 429, 188 Pac. 497; Boulton v. Seattle, 114 Wash. 234, 195 Pac. 11; Danielson v. Carstens Packing Co., 115 Wash. 516, 197 Pac. 617; Shead v. Riser, 136 Wash. 270, 239 Pac. 562; Maddock v. McNiven, 139 Wash. 412, 247 Pac. 467; Applewhite v. Wayne, ante p. 62, 277 Pac. 84.

By § 7, chapter 150, Laws of 1925, Ex. Ses., p. 423 (Eem. 1927 Sup., §2183-1), our legislature gave tbe right of appeal in criminal actions to the state, as follows:

“Tbe state may have a right of appeal to tbe supreme court, upon giving tbe same notice as is required of other parties, when tbe error complained of is based on tbe following: ... (4) An order granting to aiiy one, convicted by a jury, a new trial on any grounds; . . .”

A review of tbe evidence in tbis case, as abstracted by tbe prosecuting attorney in behalf of tbe state, renders it quite convincing to us that the evidence was in such conflict and so unsatisfactory, touching the alleged guilt of Cornell, as to plainly show that the trial court did not abuse its discretion in granting him a new trial upon the ground stated. It seems plain to us that the discretion of the trial court in granting a new trial in this case is of the same nature and goes to the same extent as its discretion in granting a new trial in a civil action, and that, by analogy, the above cited of our decisions, to which many more might be added, are controlling in the disposition of this appeal.

The order granting to Cornell a new trial is affirmed.

Mitchell, C. J., French, Millard, and Main, JJ., concur.  