Opinion
No. 11394.
Argued December 23, 1954.
Decided January 4, 1955.
Ray E. Machen, Philadelphia, Pa., for appellant.
Francis Ballard, Asst. U.S. Atty., Philadelphia, Pa. (W. Wilson White, U.S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, and KALODNER, Circuit Judges, and LORD, District Judge.
This is an appeal from the denial of an application for a new trial on the grounds of newly discovered evidence. The defendant had been convicted and sentenced following a jury trial. The trial judge gave him a thorough hearing on the application for a new trial. He concluded that the showing upon the application was insufficient to justify the relief sought.
The criteria for granting a new trial on the basis of newly discovered evidence are set out in Johnson v. United States, 8 Cir., 1929, 32 F.2d 127. They met the approval of this Court in United States v. Rutkin, 1953, 208 F.2d 647. They were correctly applied to the situation by the trial judge.
This case is not one where we should interfere with the discretion exercised by the trial judge in denying the motion. He did the right thing in granting a hearing and seeing the witnesses. While what they had to say is relevant we agree with the trial judge that it is impeaching testimony only and concur in his conclusion that it is highly doubtful whether the testimony would produce any different results at another trial.
The judgment of the district court will be affirmed.