228 F2d 33 Blackburn v. United States

228 F.2d 33

Walter J. BLACKBURN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 11995.

United States Court of Appeals District of Columbia Circuit.

Argued October 3, 1955.

Decided October 20, 1955.

Petition for Rehearing Denied November 30, 1955.

Mr. David G. Bress, Washington, D. C. (appointed by this Court), for appellant.

Mr. Gerard J. O'Brien, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., and Messrs. Lewis Carroll and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Mr. Carl W. Belcher, Asst. U. S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, BAZELON and DANAHER, Circuit Judges.

PER CURIAM.

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1

This is an appeal from the denial of a motion for a new trial upon alleged newly discovered evidence. Appellant was indicted with another man for housebreaking and larceny. His co-defendant pleaded guilty. Upon appellant's trial two other men appeared as witnesses for the Government. The motion for a new trial is based upon a recantation by one of these witnesses and a supporting affidavit by the co-defendant, who did not testify at the trial. The District Court held a hearing on the motion and heard the testimony of the recanting witness and of the co-defendant. At the conclusion of the hearing the trial judge stated that he did not believe the testimony. Upon that basis he overruled the motion.

2

A motion for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court. Where, as here, that court listens to the testimony, observes the witnesses, and concludes that the testimony is not worthy of belief, its exercise of its discretion, unless abused, will not be disturbed by this court.

3

The order of the District Court is

4

Affirmed.