Opinion
May 16, 1972.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
CRIMINAL LAW. Motion for New Trial. Decision Below. Burden on Moving Party.
Upon appeal of decision of trial justice denying motion for a new trial the appellant must establish that the trial justice, in the course of sifting and weighing the evidence, overlooked or misconceived some evidence which was relevant or material on a controlling issue or that he was otherwise clearly wrong.
INDICTMENT tried to a jury in Superior Court, Mackenzie, J., presiding, before Supreme Court on bill of exceptions wherein defendant presses exception to decision denying his motion for a new trial, heard and exceptions overruled, and case remitted to Superior Court for further proceedings.
Richard J. Israel, Attorney General, Donald P. Ryan, Asst. Attorney General, Henry Gemma, Jr., Special Asst. Attorney General, for plaintiff.
James Cardono, Public Defender, John P. Toscano, Jr., Asst. Public Defender, for defendants.
Stephen Craig St. Angelo and Paul Richard Fairhurst were each tried and convicted before a judge and jury in the Superior Court on a joint indictment which charged each of them with breaking and entering a building in the nighttime with intent to commit larceny. The case is now here on their bill of exceptions, and the only exception pressed is to the trial justice's denial of their motion for a new trial.
At the trial each of the defendants rested at the close of the state's case without either taking the stand or otherwise offering any evidence in his own behalf. Following guilty verdicts, each moved for a new trial. After hearing their arguments the trial justice weighed the evidence, passed on the credibility of the witnesses, and then concluded that the evidence against defendants was "clear and convincing," that the case against them was "overwhelming," and that the state had proved its case "beyond a reasonable doubt." Upon those bases he approved the verdict and denied the motion of each defendant for a new trial.
To persuade us to disregard that approval, defendants must establish that the trial justice, in the course of sifting and weighing the evidence, overlooked or misconceived some which was relevant or material on a controlling issue or that he was otherwise clearly wrong. State v. McCartin, 106 R.I. 674, 262 A.2d 826 (1970); State v. Contreras, 105 R.I. 523, 253 A.2d 612 (1969). They have not met that burden.
The defendants' exceptions are overruled, and the case is remitted to the Superior Court for further proceedings.