301 F2d 547 Johnson v. United States

301 F.2d 547

112 U.S.App.D.C. 223

Clarence C. JOHNSON, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16591.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 26, 1962.
Decided March 8, 1962, Petition for Rehearing En Banc Denied
En Banc May 15,1962.

Mr. Martin Jay Gaynes, Washington, D.C. (appointed by this court) for appellant.

Mr. Arnold T. Aikens, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Nathan J. Paulson and Joel D. Blackwell, Asst. U.S. Attys., were on the brief for appellee.

Before FAHY, WASHINGTON and BURGER, Circuit Judges.

PER CURIAM.

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1

When this case was here before1 we affirmed the convictions of housebreaking and larceny without prejudice to the right of appellant to file a motion for a new trial in the District Court on the ground of newly discovered evidence.2 The newly discovered evidence allegedly consisted of the testimony of the complaining witness, which he gave at another and later trial, to the effect that he had not made the complaint against appellant which resulted in his arrest in this case. This evidence might have been important because the warrant of arrest for the offenses had been issued on the basis of an application for an arrest warrant attributed to the complaining witness. If the warrant had been invalidly issued evidence obtained by the search and seizure which followed the arrest might not have been available to the prosecution at the trial.

2

Appellant filed a motion for a new trial in the District Court, and the present appeal is from the order of the court denying the motion. The order recites that the evidence proffered in support of the motion qualified as newly discovered but that the arrest warrant application which resulted in the arrest was in fact and in law that of the complaining witness, and that the arrest accordingly was valid.

3

Upon examination of the testimony taken at the hearing on the motion we agree with the conclusion reached by the District Court and its order accordingly is

4

Affirmed.

1

See Johnson v. United States, 110 U.S.App.D.C. 193, 290 F.2d 384

2

Fed.R.Crim.P. 33, 18 U.S.C.A