Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.
DUBOIS, C. J. The defendant was indicted for an assault with a dangerous weapon, to wit, a knife. The case was tried in the superior court, and resulted in a verdict of guilty with recommendation of mercy. The defendant filed his motion for a new trial, which motion was heard and denied by the justice of the superior court who presided at said trial. The case is now before this court for the consideration of the defendant's exceptions, the truth of which was established by us upon his petition brought for that purpose, viz.: The exception taken to the refusal of the superior court to grant the defendant's motion for a new trial, and the following exceptions, numbered by the defendant I, II, III, IV, and V, in his bill of exceptions, to wit:
"I. To that part of the charge of the justice presiding at the trial of said cause which stated that the attorney for the defendant knew at the time of the interview with the witness John Malone that he had been summoned in behalf of the state, on the ground that the evidence shows that the boy was summoned by the state on Monday night, on the ground that the attorney for the defendant notified the defendant in this case on Monday night to bring the boy to his office on Tuesday morning, and that there is nothing in the evidence to show that the attorney for the defendant knew at the time that the interview was held in his office that the boy was under summons by the state. Transcript, page 181.
"II. To that part of the charge of the justice presiding at the trial of said cause which suggests that the fleeing of the defendant under the circumstances in this case is prima facie evidence of his guilt. Transcript, page 182.
"III. To that part of the charge of the justice presiding at the trial of said cause
which suggests that the evidence which the attorney for the defendant gave to the effect that he was notified by the defendant that John Malone was a witness in this case is susceptible of the construction, which his honor has put upon it, that said attorney for the defendant knew that said witness had been summoned by the state as a witness in this case. Transcript, page 184.
"IV. To that part of the charge of the justice presiding at the trial of said cause as set forth in the following language: 'No, if your honor please, I will take now an exception to your honor's last statement that I knew he was to be a witness, on the ground there is no testimony in this case that I knew he was to be a witness; that my testimony was that he was a witness. He was a witness in the sense he was a witness of the affair, not that he was to be a witness summoned either by himself or the state; and, further, there is nothing in the testimony upon which may be predicated the charge of your honor that I knew of his being summoned by the state, because there is testimony in the record that an arrangement was made by me that he was to appear at my office whereby to come to this court at 9 o'clock Wednesday morning, an arrangement entered into on Tuesday morning, when he was to come to my office.
"V. To the sustaining by the justice presiding at the trial of said cause of the objection of the Assistant Attorney General for the state to the thirteenth question of counsel for the defendant asked the defendant, as shown on page 149 of the transcript."
The defendant's motion for a new trial reads as follows:
"And now comes the respondent in the above-entitled cause, within seven days after verdict therein, and moves that a new trial be granted him, and for grounds of said motion, upon which said grounds he hereby declares he relies, he says:
"I. That said respondent did not have a fair and impartial trial, in that the prosecuting attorney, notwithstanding the objection of said respondent, was allowed by the justice presiding at the trial of said cause to state to the jury that it was improper for the respondent by his attorney to interview, confer, or have any intercourse with a witness summoned by the state relative to the testimony to be offered by said witness at said trial, to the manifest prejudice of said respondent before said jury.
"II. That said respondent did not have a fair and impartial trial, in that the justice presiding at the trial of said cause instructed the jury that the state's witnesses had been approached by the respondent, by his attorney, to learn what they were to testify to, and that the state's witnesses should be left alone by the defendant, and should not be approached by him to learn what they are to testify to, to the manifest prejudice of said respondent before said jury.
"III. That the record in this cause shows a variance between the indictment and the proof, in that the indictment charges assault with a dangerous weapon, while there is no proof that establishes the size or character of tht pocket knife in the hands of the respondent as a dangerous weapon.
"IV. That said verdict is against the law.
"V. That said verdict is against the law and the evidence, and the weight thereof.
"Wherefore the said respondent moves that a new trial be granted him."
The motion for a new trial was filed under the provisions of Gen. Laws 1909, c 298, § 12, which provides: "Within seven days after verdict any person or party entitled to except in a cause or proceeding tried by a jury in the superior court may file in the office of the clerk of said court a motion for a new trial for any reason for which a new trial is usually granted at common law, other than error of law occurring at the trial. Such motion shall state the grounds relied upon in its support. The court, after hearing the parties, may set aside the verdict and order a new trial, with or without terms. A verdict shall not be set aside as excessive by the Supreme or superior court until the prevailing party has been given opportunity to remit so much thereof as the court adjudges excessive." It will be noticed that "error of law occurring at the trial" is excluded from the reasons for which a new trial may be granted upon such a motion; also the claim made by the defendant in the first and second grounds of his motion, that he did not have a fair and impartial trial of the case in the superior court, are inappropriate in such a motion. If the defendant did not have a fair and impartial trial for the reasons given in the motion, it was on account of error of law occurring at the trial.
Moreover, another remedy is provided by Gen. Laws 1909, c. 297, § 2, in the following terms: "A party or garnishee in any action or proceeding in the superior court in which a trial has been had which was not full, fair, and impartial, may at any time within one year after verdict or decision petition the Supreme Court for a new trial; and the Supreme Court may, with or without terms, order a new trial in the superior court." This remedy is exclusive, and therefore there is no necessity for further consideration of the first and second grounds of said motion.
The third ground thereof is also untenable. There was ample proof of the dangerous character of the wounds inflicted by means of the knife in the hands of the respondent. There could hardly be a fairer test than that, which speaks of results rather than theories or speculations, of facts instead of opinions.
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