who died after a botched burglary at her Ireland Island home.

Michael Dean Eberly and Michael Brian Pitcher were sentenced to life for killing neighbour Beatrice Simons in December 1997.

But in Supreme Court yesterday Pitcher's lawyer, Saul Froomkin, argued that there was no case to answer because there was a lack of proof.

He said: "The Crown said Mr. Pitcher was left handed and killed the deceased with a cedar stick.

"But there was no evidence the murderer was left handed, there was no evidence that a cedar stick was the weapon and there was no evidence that Mr.

Pitcher did it.'' "The whole case collapsed -- the Crown nailed its colours to the mast but they can't be seen to change it halfway through the voyage.'' "The prosecution have failed to produce any evidence that the defendant was asked to meet.'' He pointed to statements from medical experts saying that the victim had told them she had been hit by something other than a stick.

Mr. Froomkin said: "The ambulance nurse said the deceased told her she had been hit with a pipe while Emergency Doctor Ed Schultz had said she told him she'd been assaulted at home with a metal bar.'' "The Police never found a bloody stick.'' The victim died from an undetected thrombosis five days after the attack.

During the trial in May last year the pair -- both of Victoria Row, admitted burglary but blamed the killing on each other.

Eberly, 35, had been convicted by a unanimous verdict for the murder of the 69-year-old while Pitcher, 32, was sentenced after a 9-3 verdict.

Eberly claimed he'd heard the victim's screams while Pitcher was upstairs. But Pitcher said he put his fingers in his ears as Eberly attacked her, after saying he would knock her out.

Mr. Froomkin said his client had admitted embarking on a burglary mission but that didn't make him responsible for the murder.

Mr. Froomkin said: "There is no evidence he acted in concert in the assault or that assault was in furtherance of a joint enterprise.

"There is no evidence he was party to this new plan.

"The jury should have been directed to acquit both defendants.'' And he said his client could not have foreseen the burglary would lead to violence.

He said: "The highest the evidence can go is that Mr. Eberly intended to knock her out to search. They were not life threatening injuries. She never lost consciousness from the time of the assault until surgery.'' The Court of Appeal will hear later this week from defence lawyer Mark Pettingill who is appealing Eberly's sentence.

COURT OF APPEAL COA