People v. Bigelow

Second Appellate District, Division Two.

June 23, 1936.&rsqb:

THE PEOPLE, Respondent, v. HARRY BIGELOW et al., Appellants.

COUNSEL

John S. Cooper for Appellants.

U.S. Webb, Attorney-General, for Respondent.

OPINION

Crail, P. J.

This is an appeal from a judgment convicting the defendants of two robberies in the first degree and one assault with a deadly weapon. Only two points are made: (1) That the evidence is insufficient to sustain the verdict, and (2) that the trial court erred in denying a motion for new trial based upon the ground of newly discovered evidence.

[1] We have read the record, and there is substantial evidence to support the verdict. [2] Whether a new trial should have been granted was a matter within the sound discretion of the trial court. We are not prepared to say that the trial court abused its discretion in denying a new trial.

[3] Defendants' able counsel makes an eloquent plea that this court should take the position of a thirteenth juror; that we should weigh the evidence and determine where the preponderance lies. He concludes with the following: "So, therefore, the Court itself can judge those witnesses and in judging those witnesses if the court is satisfied they have told an untruth and has found a motive for telling that untruth, the Court certainly would be justified in this case in granting the new trial." This we may not do. Louder than counsel's eloquence there comes ringing in our ears the admonition of the people as set forth in article VI, section 4 1/2, of the Constitution.

Judgment affirmed.

Wood, J., and Gould, J., pro tem., concurred.