Fallen v. United States, 16853.

• Decision Date: 10 December 1957
• Docket Number: No. 16853.,16853.
• Citation: 249 F.2d 94
• Parties: Curtis FALLEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

249 F.2d 94 (1957)

Curtis FALLEN, Appellant, v. UNITED STATES of America, Appellee.

No. 16853.

United States Court of Appeals Fifth Circuit.

November 13, 1957.

Rehearing Denied December 10, 1957.

Mark Dunahoo, Winder, Ga., for appellant.

William C. Calhoun, U. S. Atty., Augusta, Ga., Donald H. Fraser, Asst. U. S. Atty., Savannah, Ga., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

PER CURIAM.

Appellant's original conviction was affirmed by this Court in Fallen v. United States, 220 F.2d 946. In that opinion also, we found no abuse of discretion by the district court in denying the appellant's motion for new trial on the ground of newly discovered evidence. The present appeal is from a denial of another such motion. The district court found that the alleged newly discovered evidence was cumulative and impeaching in character.

The denial of such a motion for new trial is appealable, Harrison v. United States, 5 Cir., 1951, 191 F.2d 874, 876; Balestreri v. United States, 9 Cir., 1955, 224 F.2d 915, 916. A careful examination of the record, including the affidavits setting forth the alleged newly discovered evidence, convinces us that the district court did not abuse its discretion in denying the motion. See same authorities. No useful purpose would be served by setting out the substance of the affidavits and their relation to the evidence upon which appellant was convicted.

The judgment of the district court is

Affirmed.