State v. de Cesare, 8207.
| Decision Date | 01 February 1940 |
| Docket Number | No. 8207.,8207. |
| Parties | STATE v. DE CESARE. |
| Court | Rhode Island Supreme Court |
Albert F. De Cesare was convicted of assault with intent to murder. On petition for leave to file in the superior court a motion for new trial on the grounds of newly discovered evidence.
Petition denied.
Louis V. Jackvony, Atty. Gen., and James O. Watts, Asst. Atty. Gen., for the State.
Peter W. McKiernan, John C. Going, and John S. McKiernan, all of Providence, for defendant, petitioner.
This is an amended petition under General Laws 1938, chapter 535, § 6, for leave to file a motion for a new trial on the ground of newly discovered evidence. The petition is supported by affidavits of the petitioner, his attorney, and four persons upon whose testimony the petitioner relies. A counter-affidavit of the chief of police of Central Falls has been filed by the state.
It appears from the petition and these affidavits that the petitioner, as defendant below, was indicted, tried and convicted, by a jury in the superior court, of assault with intent to murder. Thereafter his motion for a new trial upon the usual grounds, including that of newly discovered evidence, was duly heard and denied by the trial justice. To this ruling and others made during the course of the trial, the petitioner duly filed his bill of exceptions, which is now pending in this court. It has not as yet been assigned for hearing on the merits.
On the hearing upon the motion for a new trial, the petitioner filed no affidavit of newly discovered evidence, as required by the rules of the superior court, and this ground of the motion was deemed to have been waived. Since that time, he claims to have obtained such newly discovered evidence and hence has brought this petition under the statute, for leave to file a motion for a new trial upon that ground.
It has not been argued and, therefore, we do not decide whether such a petition should be heard before or after the pending bill of exceptions has been heard and determined upon the merits. Assuming, however, that the petition meets the requirements of the statute in that regard, we are nevertheless of the opinion that it must be denied for other reasons.
The substance of the petitioner's present contention is that some of the persons, who were brought to look at him while he was in the line-up at the police station, "refused to identify him"; and that these four affiants were among such persons but that their identity was not discovered by him in time to have them testify at the trial. His own affidavit states that he then knew the fact that several persons had thus "refused to identify him", and he so testified positively at the trial. It also states that he made such fact known to his attorney before trial and asked the latter to locate them for his defense.
His attorney's affidavit asserts that he "made diligent search in an endeavor to locate these persons and during the course of the trial I endeavored to ascertain the names of these persons". But nowhere in the affidavit of the petitioner or his attorney does it appear what, if anything, was actually done to locate or identify these persons. No facts whatever are recited to justify the mere conclusion and assertion that diligence was employed in that regard. On the contrary, from the counter-affidavit, it appears that no effort was made by...
To continue reading
Request your trial
-
State v. Buckley
...evidence could not have been ascertained in time to be presented at the trial. State v. Sullivan, 83 R.I. 1, 111 A.2d 838; State v. DeCesare, 64 R.I. 123, 10 A.2d 724; State v. Miller, R.I., 142 A. 662; State v. DO'ttone, R.I., 103 A. What is here claimed as newly discovered evidence falls ......
-
State v. Andrews, 9697
...but there is nothing to show whom he describes, and the significance of this evidence is far from clear. In State v. De Cesare, 64 R.I. 123, at page 126, 10 A.2d 724, at page 725, this court stated: '* * * the affidavits of the four persons, upon whose testimony the petition is based, do no......
-
Warren v. Martini.
...Co., 39 R.I. 396, 98 A. 280; Woodward v. Wilbur, 54 R.I. 60, 169 A. 486; Berarducci v. Sarcione, 55 R.I. 398, 181 A. 913; State v. De Cesare, 64 R.I. 123, 10 A.2d 724. The trial justice in his rescript omitted to say whether, in his judgment, the evidence under consideration, if believed, w......
-
State v. Sullivan
...exercise of ordinary diligence the evidence could not have been discovered in time to be presented at the trial.' See also State v. De Cesare, 64 R.I. 123, 10 A.2d 724, Silva v. Peerless Casualty Co., 53 R.I. 218, 165 A. 449, and State v. Miller, R.I., 142 A. In the instant case the affidav......