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UNITED STATES v. MORRIS

January 15, 1970

UNITED STATES of America
v.
Galveston MORRIS a/k/a Sonny


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

The defendant in this case was apprehended in Philadelphia on January 17, 1968, and was charged with having illegally sold heroin on May 2, 1967. The defendant's arrest effectively closed what had been an extensive undercover investigation by both State and Federal agents into a narcotics ring, of which the defendant was the reputed head. At a trial before a jury, the defendant was found guilty of a sale of narcotics in violation of 26 U.S.C. § 4704(a). Presently before this Court is defendant's Motion for a New Trial and a Motion to Quash the Indictment.

 MOTION FOR A NEW TRIAL

 In support of his Motion for a New Trial, the defendant alleged the following grounds:

 (1) the verdict was against the evidence;

 (2) the verdict was against the weight of the evidence;

 (3) the verdict was against the law;

 (4) the trial court erred in over-ruling the defendant's motion for judgment of acquittal: *fn1"

 (5) the court committed error in failing to grant the defendant a pre-trial hearing on his motion to dismiss the indictment; further, the court erred in denying the defendant's pre-trial motion to dismiss.

 I.

 Initially, we will consider defendant's claim that a new trial should be granted because the verdict was against the evidence and also against the weight of the evidence. On a motion for a new trial, the court may weigh the evidence and consider the credibility of witnesses. Indeed, it has been said that on such a motion the court sits as a "thirteenth juror". Wright, Federal Practice and Procedure, § 553. If the court reaches the conclusion that the verdict is contrary to the evidence, or its weight, and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. Suffice it to say that after reviewing the evidence on both sides and assessing the credibility of the witnesses, we find that the verdict was fully justified by the evidence.

 II.

 Defendant also avers that a new trial should be granted in that the verdict was against the law. The motion does not specifically allege what legal errors were committed. However, in his Memorandum in Support of the Motion, the defendant states that the court erred in its charge relating to the "interest in the outcome" of the litigation as regards the defendant and the informer. (N.T.T. pp. 401-403). This, we assume, is the basis for the defendant's assignment of legal error.

 Fatal to the defendant's objection is Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C., which provides, in pertinent part, that:

 
"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which ...

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