
    *Kates v. The Commonwealth.
    April Term, 1867,
    Richmond.
    I. Criminal Law — Appellate Practice — Verdict Contrary to Weight of Evidence. — In a prosecution for a felony, after verdict and judgment, the appellate court will not reverse the judgment and order a new trial, on the ground that the verdict is contrary to evidence, unless it is plainly insufficient for a conviction.
    This was an indictment in the Circuit court. of Bedford county against Rucinda Kates, a colored woman, for the murder of her child. On the trial the jury found her guilty of voluntary manslaughter, and fixed the term of her imprisonment in the penitentiary at eighteen months. The prisoner asked for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, and sentenced her in accordance with the verdict. And thereupon the prisoner excepted to the opinion of the court overruling her motion, and the court stated the facts proved upon the record; and a writ of error to the judgment was awarded.
    
      There was no doubt that the prisoner was the mother of the child, and that she deposited it in a shed in a back lot near to that on which she lived as cook in a white family, where it was almost immediately found. The only questions of doubt were, whether the child was born alive, or came to its death by the act of its mother after-wards. On these questions there might be a possible doubt.
    for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      Appellate Practice — Verdict Contrary to Weight of Evidence. — It is an established rule that an appellate court will not reverse a judgment, refusing a new trial, on the ground that the verdict is contrary to the weight of evidence, unless the evidence is plainly insufficient to warrant the verdict. The principal case was cited as authority for this proposition in Oneale’s Case, 17 Gratt. 591; Kemp’s Case, 18 Gratt. 977; Read’s Case, 22 Gratt. 945; Kimball v. Friend, 95 Va. 144, 27 S. E. Rep, 901.
      See also, Vaiden’s Case, 12 Gratt, 717; Blair v. Wilson, 28 Gratt. 166, and foot-note; Hilb v. Peyton, 22 Gratt. 550, and foot-note; Richmond, etc., R. Co. v. Snead, 19 Gratt. 355, and foot-note.
      
      As to when the original court should grant a new trial on the ground that fhe verdict is contrary to the weight of evidence, see foot-note to Read’s Case, 22 Gratt. 924; Blosser v. Harshbarger, 21 Gratt. 214, and foot-note.
      
    
   MONCURE, P.,

delivered the opinion of the court:

The court, although of opinion that the evidence in this case does not clearly show either that the child was born alive or that it came to its death by the act or neglect of the mother, is yet of opinion that, according to the principles laid down by this court in the case of Vaiden v. The Commonwealth, 12 Gratt. 717, the said evidence is not so plainly insufficient to warrant the verdict as to authorize this court to reverse the judgment. Therefore it is considered by the court that there is no error in the said judgment, and that it be affirmed.

Judgment affirmed.  