Wells v. Parsons ( 1842 )

The court ought to submit the weight of evidence to the jury, unless the facts are agreed on. (2 Stark. Ev. 912.) There is testimony showing that Wells was not within two miles of Parsons' house that night. This produces a conflict of testimony which the jury ought to decide upon. (1 T. Rep. 529, Johnson vs.Sutton.)

Houston. — So far as the evidence is conflicting, I do not call on the court to decide any thing. There are certain facts credible in themselves, plainly proved by an unimpeached witness; and which in themselves amount to probable cause of indictment. I call on the court to do what is clearly its province, to decide on the proof of probable cause by evidence uncontradicted, without turning aside to the jury. The question of probable cause I admit is a mixed question of law and fact; if the facts are controverted they are to be found by a jury, and the court applies the law to them; but if the facts are uncontroverted by evidence, the court will take them as proved and nonsuit the plaintiff at once.

By the Court.