
    No. 69
    LICATE v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6657.
    Decided Oct. 5, 1925.
    480. EVIDENCE — A new trial will not be granted upon newly discovered evidence unless such evidence, if submitted to the court, would probably result in a verdict contrary to that already rendered.
    Attorneys — George D. Castello for Licate; Carl Shuler for State; both of Cleveland.
   SULLIVAN, J.

Nick Licate was convicted in the Cleveland Municipal Court for having intoxicating liquor in his possession and which conviction was affirmed in the Cuyahoga Court of Appeals. Later Licate filed a petition in the Municipal Court to vacate its judgment because of newly discovered evidence, and in his affidavit on this matter, Licate alleged that one Antonio Depasquale occupied and possessed the premises where the liquor was found. As evidence thereof, a gas bill of the premises was offered which according to the records of the East Ohio Gas Co. bore the name of said Depasquale and which tends to show that he was in possession of the premises when the liquor was found.

The Municipal Court refused to grant a new trial and error was prosecuted by Licate upon the ruling of the Court below. The Court of Appeals held:

To warrant Licate a new trial upon the newly discovered evidence, the proof must be of such nature that had it been submitted to the trial court, a verdict and judgment contrary to that already rendered would have probably resulted. The additional evidence offered by Licate is not sufficient to warrant a Court to grant a new trial.

Judgment affirmed.  