Aрpellant (defendant) was convicted in the First Circuit Court, after a jury trial, of burglary in the second degree. He retained two attorneys who represented him on the trial. They filed a motion for a new trial which, after hearing thereon, was deniеd. Defendant was sentenced to the maximum term and while in prison sent a letter to the trial judge voicing his dissatisfaction with the сonviction and intimating that he wanted to appeal. In another letter in the file the defendant indicated that his attorneys were retained only for the trial. The court treated the first letter as an application for leave tо appeal in forma pauperis. After a hearing, in which the defendant personally appeared befоre the court, the application was denied.
Subsequently defendant’s attorneys reappeared in the cаse and filed a formal application on his behalf for leave to appeal in forma pauperis undеr the provisions of R.L.H. 1955, § 253-5, as amended by S.L.H. 1957, Act 239. The application set out that the defendant intended to rely on the appeal on the following points: (1) That the court erred in denying his motions for a judgment of acquittal at the conclusion of the State’s case and at the conclusion of the evidence; (2) That the court erred in denying his motion for a new trial, as amended; and *350 (3) That the court erred iu its refusal to grant eight of his requested instructions.
The grounds stated in the motion for a nеw trial, as filed, included the first and third points above set out. The motion for a new trial also reveals that the motions for аcquittal were based on the contention that the evidence was insufficient to support a conviction. At the hеaring on the motion for a new trial the defendant was permitted to orally amend the motion to include a further ground to the effect that he did not have a fair and impartial trial due to the alleged fact that the deputy prosecutor trying the case had conversed with one of the jurors during a recess.
Defendant was present and was also reрresented by his counsel on the hearing of the application for leave to appeal in forma pаuperis. The trial judge entered a written order denying the application. In the order he certified that the proрosed appeal was frivolous and not taken in good faith. This order is now before us on appeal. The appeal was filed on the defendant’s behalf by his counsel, both of whom, in the certificate required of them under the practice prescribed by
In re Carvelo,
While the trial court’s certification that an appеal in this case would be frivolous is entitled to weight, we appreciate that it is not conclusive.
In re Carvelo, supra; Coppedge
v.
United States,
In respect to the contention that defendant did not
*351
have a fair trial by reason of the deputy proseсutor’s conversation with a juror during the trial, it is clear that the failure to raise the point during the trial constituted a waiver thereof.
Territory
v.
Young,
The trial court continued the hearing on the motion for new trial and subpoenaed the juror to appear. The minutes show that at the adjourned hearing the juror was examined, and that he testified he did not have any conversation with the deputy prosecutor — that what occurred between them was merely that the deрuty prosecutor told him during a recess that he should not chew gum in the jury box.
An examination of the record reveals that еach of the defendant’s eight requested instructions which were refused was fully covered in the court’s charge to the jury. Mоst of the instructions denied were given word for word in the charge. The remainder were covered in substance. No errоr can, therefore, be predicated on the refusal to give the requested instructions. See
Territory
v.
Martin,
The court has stated in its certificate that the jury’s verdict rested on its determination of credibility of witnesses. Defendant’s counsel, who also represented him at the trial, have conceded that the credibility of witnesses was the turning point. As is stated in
In re Carvelo, supra,
and as has beеn held in many other cases in this jurisdiction, a verdict depending on the jury’s determination of the credibility of witnesses is conclusivе on appeal. See
State
v.
Carvelo,
An application for leave to appeal in forma pauperis *352 on the ground of the insufficiency of the evidence should specify wherein it is contended the evidence was insufficient аnd it should also present a summary of the pertinent evidence prepared from counsel’s notes and recollection in support of the contention. These should be presented to the trial judge for his comment thereon and thereafter transmitted as part of the record on appeal from the denial of the application. If the need of a transcript appears we will order the pertinent portion. In the present case there is no basis for such order. The mere assertion in this case to the effect that the evidence was insufficient to sustain thе verdict cannot and does not impeach the verity of the trial court’s statement that the verdict turned on the jury’s detеrmination of the credibility of witnesses.
In view of the foregoing, it is our opinion that there is no adequate basis shown in the cаse for allowance of an appeal in forma pauperis. The order appealed from is therefore affirmed.