Opinion
No. 18213.
June 15, 1960. Rehearing Denied July 28, 1960.
William F. Walsh, Houston, Tex., for appellant.
Robert C. Maley, Jr., Norman W. Black, Asst. U.S. Attys., Houston, Tex., William B. Butler, U.S. Atty., Houston, Tex., for appellee.
Before HUTCHESON, BROWN and WISDOM, Circuit Judges.
When appellant was here before on his appeal from the denial of his motion for new trial, on the ground of newly discovered evidence, we fully recognized that it was not our province "to review orders granting or denying motions for a new trial where such review is sought on the alleged ground that the trial court made erroneous findings of fact." United States v. Johnson, 327 U.S. 106, at page 111, 66 S.Ct. 464, 466, 90 L.Ed. 562. We did not find fault with, we did not review or reverse the district judge's findings and conclusions as such. Stating:
United States v. Lyles, 175 F. Supp. 85.
Cf. United States v. Troche, 2 Cir., 213 F.2d 401 at page 403; Newman v. United States, 5 Cir., 238 F.2d 861; Tomley v. United States, 5 Cir., 260 F.2d 468.
"In this case, each of the parties requested an oral hearing, and evidently thought such a hearing advisable if not absolutely necessary. Under all of the facts and circumstances of the case, including the requests of the parties, we think that the district court certainly, and perhaps this Court also, will be in better position to exercise its functions if the evidence is fully developed upon a hearing. The judgment is, accordingly, vacated and the cause remanded for an oral hearing of such testimony as may be offered in support of and in opposition to the motion for new trial." Lyles v. United States, 5 Cir., 272 F.2d 910, at page 913.
we vacated the judgment and remanded the cause accordingly.
The district judge, correctly apprehending the nature, purpose and effect of our order, set the case down for, and afforded the hearing directed, and, on findings and conclusions United States v. Lyles, 180 F. Supp. 427, fully supporting his order, denied the motion for new trial.
Appellant, apparently laboring under the mistaken view that it is the function of this court to review and revise findings of the district judge, and control the exercise of his discretion, in passing on a motion for new trial on newly discovered evidence, is here seeking to have this court do what the Supreme Court, in the Johnson case, supra, other circuits, in cases without number, and this court, in the Newman and Tomley cases, note 2 supra, have specifically and definitely declared the Courts of Appeals may not do.
Note 15, Rule 33, Title 18, 1959 Cum.An. Pocket Part, page 261 et seq.
Declining, therefore, to enter upon the task to which appellant invites us, of reviewing for ourselves the records, including that made in the original trial of the case for the purpose and with the object of making findings, we content ourselves with saying that the appeal is without merit and that the order appealed from should be, and it is, affirmed.