¶1dissenting.
¶2The facts and inferences therefrom are stated, in the majority opinion, in the light most favorable to the accused. It must be remembered that the jury found a verdict against the accused and for the Commonwealth, and this verdict was approved by the trial court. The facts and all fair inferences therefrom which the jury had a right to and did so find are stated in the original opinion reported in Thomas v. Commonwealth, 186 Va. 814, 44 S. E. (2d) 365.
¶3The rule by which this Court has been guided heretofore in considering a motion to set aside a verdict on the ground that it is not supported by the evidence is that the Court must discard all of the evidence introduced by the accused in conflict with the evidence for the Commonwealth, and must regard as true the Commonwealth’s evidence and all fair inferences to be drawn therefrom. When the evidence is so considered the question is—is the verdict contrary to that evidence? “ … where the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon a jury, would have given a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant the finding of the jury. This restriction applies a fortiori to an appellate court. For in the appellate court there is superadded to the weight which must be given to the verdict of a jury fairly rendered, that of the opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial.” Dean v. Commonwealth, 32 Gratt. (73 Va.) *274912, 917; Davis v. Commonwealth, 132 Va. 525, 110 S. E. 252; Code 1919, section 6363.
¶4For these reasons I think we should adhere to the former decision.
¶5Justice Buchanan concurs in the views herein expressed.