260 F2d 468 Tomley v. United States

260 F.2d 468

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

No. 17377.

United States Court of Appeals Fifth Circuit.

Oct. 31, 1958.

Joseph Tomley, in pro, per., for appellant.

Floyd M. Buford, Asst. U.S. Atty., Macon, Ga., for appellee.

Before RIVES, TUTTLE and JONES, Circuit Judges.

PER CURIAM.

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1

Appellant was convicted for conspiracy to violate 18 U.S.C.A. 641, and this Court, on December 26, 1957, affirmed the conviction, 250 F.2d 549, certiorari denied 356 U.S. 928, 78 S.Ct. 716, 2 L.Ed.2d 759. On April 25, 1958, appellant filed with the District Court an extraordinary motion for new trial based on an affidavit of a person who sought to impeach the testimony of the principal witness for the prosecution. The District Court denied the motion and this appeal resulted.

2

As we stated in Newman v. United States, 5 Cir., 238 F.2d 861, 862, even where the so-called newly discovered evidence is a recantation affidavit by the witness himself,

3

'The function, on well-defined standards, is that of the District Judge for it is '* * * important for the orderly administration of criminal justice that finding on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most extraordinary circumstances * * *,' United States v. Johnson, 327 U.S. 106, at page 111, 66 S.Ct. 464, at page 466, 90 L.Ed. 562, at page 565. If the District Judge, on the basis of the whole record of the original trial and the matters presented on the hearing of the motion, believes the statements in the affidavit of recantation to be false and is not reasonably well satisfied that the testimony given by the witness on the trial was false, the decision is for him to reach for he is 'not at liberty to shift upon the shoulders of another jury his own responsibility, but (is) charged with the responsibility to seek the truth himself * * *.' Gordon v. United States, 6 Cir., 178 F.2d 896, 900, certiorari denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353.'

4

The affidavit in this case being one step removed from an affidavit of recantation, so much the less should an appellate court interfere with the judgment of the trial court in exercising his discretion to deny the motion for new trial.

5

The judgment is affirmed.