No. 9327.

110 F.2d 528 (1940)


Circuit Court of Appeals, Fifth Circuit.

March 19, 1940.

Attorney(s) appearing for the Case

Jos. O. McGehee, of Columbus, Ga., for appellant.

T. Hoyt Davis, U. S. Atty., and H. G. Rawls, Asst. U. S. Atty., both of Macon, Ga., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.


Against the appellant there was the direct and positive testimony of one witness who claimed to be a co-principal in the making, possession and transportation of the distilled liquor, and there were also corroborating circumstances. Such evidence was sufficient to support the verdict of guilty.

The extraordinary motion for a new trial was based on newly discovered evidence that prior to the trial the witness above mentioned had made statements in contradiction of his testimony. The District Court had power to grant a new trial for reasons for which new trials have usually been granted in the courts of law. 28 U.S.C.A. § 391. But as a rule new trials are not granted where the newly discovered evidence is only of an impeaching character. The grant thereof rests in the sound discretion of the trial judge, and no abuse of discretion appears in his refusal of a new trial in this case. Royal Ins. Co. v. Eastham, 5 Cir., 71 F.2d 385; Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884.



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