260 F2d 365 Stern v. United States

260 F.2d 365

Joseph STERN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 13583.

United States Court of Appeals Sixth Circuit.

October 25, 1958.

Miller & Griffin, Lexington, Ky., for appellant.

Henry J. Cook, U. S. Atty., Lexington, Ky., for appellee.

Before ALLEN, Chief Judge, and SIMONS and MARTIN, Circuit Judges.

PER CURIAM

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1

This case has been heard and considered upon the oral arguments and printed briefs of the attorney for the appellant and the United States Attorney and upon the record in the case.

2

The single issue presented is whether or not the trial judge abused his discretion in denying the motion of appellant [who had been convicted of and sentenced for violation of the Anti-Narcotic Laws of the United States (26 U.S.C.A. § 2704 and 21 U.S.C.A. § 174)] for a new trial upon the ground of newly discovered evidence. Such motion is addressed to the sound judicial discretion of the trial court. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562. Reversal of the trial court's judgment in disallowing the motion must be based upon a clear showing of abuse of discretion. Winer v. United States, 6 Cir., 228 F.2d 944; Sharp v. United States, 6 Cir., 195 F.2d 997. No such showing has been made here.

3

The affidavit of Devers was that of a narcotic law violator who did not point the finger of accusation toward Smith, in exculpation of appellant, until after Smith had been murdered and could not contradict him. The other affiant, Thomas, an employee at the United States Public Health Service Hospital where the crime was committed, testified at the trial of appellant, but held back his later statement casting suspicion toward the deceased Smith until after the trial and conviction of appellant.

4

The experienced and able District Judge Ford cannot be but upheld in his refusal to believe the affiants upon whose assertions a new trial is sought.

5

The judgment of the United States District Court is affirmed.