Appellant does submit an affidavit from Gleason which, if believed, would dissociate appellant from the crime altogether. This is the weakest sort of evidence, La Belle v. United States, 5 Cir., 1936, 86 F.2d 911, and the district court, which conducted the original trial, was certainly within its discretion in disbelieving it. Indeed, if a new trial could be predicated as of right upon a codefendant's change of heart after failure to take the stand there could always be a second chance for everyone.
In opposition to appellants' motion the Government has filed certified copies of criminal proceedings in the Jefferson Circuit Court of Kentucky against Macom, which show that on November 9, 1951 Macom, after having previously pleaded not guilty, entered a plea of guilty to an indictment charging him with the theft in July, 1950, of the 1950 Oldsmobile involved in this case, followed by a sentence of a year in the county jail. Coupled with the lapse of time between the trial and the making of the present affidavit, approximately eight months, and giving consideration to the fact that the so-called newly discovered evidence is wholly in the nature of impeaching evidence, we fail to find any merit in the motion to remand. Gichanov v. United States, 6 Cir., 281 F. 125; Evans v. United States, 10 Cir., 122 F.2d 461, 469; certiorari denied 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558; Goodman v. United States, 3 Cir., 97 F.2d 197, 199; LaBelle v. United States, 5 Cir., 86 F.2d 911. The evidence on which the motion is based is not such as would probably produce a different result. Baird v. United States, 6 Cir., 279 F. 509, 512; Wagner v. United States, 9 Cir., 118 F.2d 801, certiorari denied 314 U.S. 622, 713, 62 S.Ct. 75, 86 L. Ed. 500; Evans v. United States, supra; Heald v. United States, 10 Cir., 175 F.2d 878, 883.
The trial court found and was warranted in finding that the evidence of Vowell was not newly discovered, but was known or could have been known by the diligence of defendant or her counsel. It has been many times held that such evidence is not sufficient upon which to grant a new trial. Coplin v. United States, 9 Cir., 88 F.2d 652, certiorari denied 301 U.S. 703, 57 S. Ct. 929, 81 L.Ed. 1357; La Belle v. United States, 5 Cir., 86 F.2d 911. It is well settled that the disposition of a motion for a new trial rests within the sound discretion of the trial judge, and error will not be predicated upon his action thereon unless abuse of discretion is shown.