Connelly v. United States

• Decision Date: 14 December 1959
• Docket Number: No. 16213.,16213.
• Parties: Matthew J. CONNELLY and T. Lamar Caudle, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F.2d 333 (1959)

Matthew J. CONNELLY and T. Lamar Caudle, Appellants, v. UNITED STATES of America, Appellee.

No. 16213.

United States Court of Appeals Eighth Circuit.

November 9, 1959.

Rehearings Denied December 14, 1959.

John H. Lashly, St. Louis, Mo., and Alan Y. Cole, Washington, D. C. (Jacob M. Lashly, Paul B. Rava, and Lashly, Lashly & Miller, St. Louis, Mo., on the brief), for appellant Matthew J. Connelly.

T. L. Caudle, Jr. (Walter M. Haynes, Winchester, Ky., C. Arthur Anderson, St. Louis, Mo., and John J. Hooker, Nashville, Tenn., on the brief), for appellant T. Lamar Caudle.

Oliver Dibble, Attorney, Department of Justice, Washington, D. C. (Malcolm R. Wilkey, Asst. Atty. Gen., and Donald C. Bush, Attorney, Department of Justice), Pittsburgh, Pa., for appellee.

Before GARDNER, VOGEL, and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Circuit Judge.

Appellants, with one Harry I. Schwimmer, were indicted for conspiracy to defraud the United States of the proper administration of Internal Revenue Laws and regulations and of the proper and faithful service of appellants, in violation of Section 371, Title 18 United States Code. We shall refer to appellants as defendants.

In the course of the trial Harry I. Schwimmer, who had been indicted with defendants, suffered a heart attack, whereupon a mistrial was granted as to him and the cause proceeded against the other defendants. The jury returned a verdict of guilty, but the trial judge departed this life before the entry of judgments. In due course, the Honorable Gunnar H. Nordbye, United States District Judge for the District of Minnesota, was designated as successor judge. Motions for judgments notwithstanding the verdict were presented to and denied by Judge Nordbye and judgments and sentences were thereupon entered. From the judgments and sentences thus entered defendants appealed to this court and the judgments of conviction were affirmed. 8 Cir., 249 F.2d 576. Defendants then petitioned the Supreme Court for certiorari, which was denied. 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716. They then applied for rehearing of their petition, which was likewise denied. 356 U.S. 964, 78 S.Ct. 991, 2 L.Ed.2d 1072. Defendants then applied for probation under Section 3651, Title 18 United States Code, which applications were denied. Each of the defendants then moved for a new trial on the ground of newly discovered evidence in the alleged available testimony of Harry I. Schwimmer, their co-defendant, as to whom a mistrial had been granted. These motions were denied on the ground, among others, that the evidence would not probably result in an acquittal if a new trial were granted. This appeal followed.

By way of preface, it may be stated that motions for new trial on the ground of newly discovered evidence are looked upon with disfavor and it is equally well settled that such motions are addressed to the judicial discretion of the trial court and its decision will not be reversed on appeal except for a clear abuse of that discretion. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Long v. United States, 10 Cir., 139 F.2d 652; Casey v. United States, 9 Cir., 20 F.2d 752; United States v. Hiss, D.C.N.Y., 107 F.Supp. 128, affirmed 2 Cir., 201 F.2d 372; 23 C.J.S. Criminal Law § 1453, p. 1224. In Long v. United States, supra, the Court of Appeals for the Tenth Circuit, in affirming an order denying a motion for new trial on the ground of newly discovered evidence, states the applicable rule of procedure as follows:

"It is well settled that the matter of granting a new trial on after-discovered evidence rests in the sound judicial discretion of the trial court, and an order refusing a new trial on that ground will not be disturbed on appeal, in the absence of a plain abuse of discretion. Wulfsohn v. Russo-Asiatic Bank, 9 Cir., 11 F.2d 715; Streckfus Steamers, Inc. v. Shuttleworth, 4 Cir., 86 F.2d 327; Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884; Weiss v. United States, 5 Cir., 122 F.2d 675. And it is equally well settled that an application for new trial based upon that ground is not regarded with favor and will be granted with great caution. Bonness v. United States, 9 Cir., 20 F.2d 754; Weiss v. United States, supra; * * *." 139 F.2d 654.

The prevailing rule is thus stated in 23 C.J.S. Criminal Law § 1453, supra:

"The granting or the refusal of the motion rests very largely in the sound discretion of the trial court, the prime consideration being whether or not substantial justice has been done, and, in the absence of an abuse of such discretion, its ruling will not be interfered with by appellate tribunals. The courts, however, have always listened distrustfully to the claim of newly discovered evidence, and as a ground for a new trial it is not favored."

It is urged in the briefs of defendants that the question of the credibility of witnesses and the weight to be given to their testimony is exclusively a function of the jury and cases are cited wherein the court in its instructions to the jury invaded the province of the jury as to this function. This rule, however, is applicable only where the issue is tried to a jury. In issues tried to the court it is the function of the court to determine the issues of fact and the credibility of testimony. A motion for new trial on the ground of newly discovered evidence is heard by the trial judge and it is his function to determine the credibility of all evidence that may be produced. 23 C.J.S. Criminal Law § 1461, p. 1253; United States v. Peller, D.C.N.Y., 151 F.Supp. 242; Johnson v. United States, 8 Cir., 32 F.2d 127. The rule is succinctly stated in 23 C.J.S. Criminal Law § 1461, supra, thus:

"The trial court has the right to determine the credibility of newly discovered evidence for which a new trial is asked, and if the court is satisfied that, on a new trial, such testimony would not be worthy of belief by the jury, the motion should be denied."

It is further argued that the court did not get the "feel of the case" because the witness, Schwimmer, did not appear on the witness stand and his demeanor could not have been observed by the court. In this case the testimony...