People v. Bigelow

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.

We have read the record, and there is substantial evidence to support the verdict. 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.

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%, of the Constitution.

Judgment affirmed.

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