I am of the opinion that the highest degree of diligence would have required this procedure, but that is not the criterion. It is simply "diligence," which I assume means ordinary diligence. That is a relative term and depends upon the circumstances of the case. Among the circumstances in this case was the fact that defendant's counsel was distracted from deeper investigation by finding the conviction of Horace Lafayette Logan of the same adress as that of the complaining witness, who turned out to be the complaining witness' brother. There is no suggestion that there was any deliberate effort to make a scanty investigation with a view to using something that might be found later as a basis for a new trial if conviction resulted. On the contrary, the attorney for defendant acted in good faith throughout, although perhaps he was not as imaginative as others might have been under the same circumstances. However, I find that he was diligent in the sense that I understand the term.
The third requirement is that the evidence relied on must not be merely cumulative or impeaching. The evidence in question is not cumulative, but it is impeaching, which under the third requirement would apparently prevent a new trial. However, it is impeaching evidence of a very serious nature under the circumstances of this case, there being no corroboration and no eye witnesses. The complaining witness testified that defendant assaulted and robbed him, and the defendant testified that the complaining witness took his money and then assaulted him. The complaining witness was portrayed before the jury as a man unblemished by a criminal record, which was not true. Defendant, on the other hand, when he took the stand, was obliged to disclose that he had been convicted of criminal offenses on four prior occasions, including carrying a dangerous weapon and robbery.
In Mesarosh v. United States, 352 U.S. 1, 9, 77 S. Ct. 1, 1 L. Ed. 2d 1, 5, the Supreme Court had this to say as to newly discovered evidence affecting a witness' credibility at the trial: "Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial." I believe under these facts that this is not a case where the ordinary rule for not granting a new trial applies, and that the evidence here does not come within the general interdiction that the newly discovered evidence which is merely impeaching is ordinarily insufficient to warrant a new trial.
The fourth requirement is that the evidence must be material to the issue involved. There would appear to be no doubt that this evidence is material, because it involves the credibility of the complaining witness.
The fifth element is that the newly discovered evidence must be of such a nature that in a new trial it would probably produce an acquittal. I believe that evidence of the complaining witness' conviction is of a character that would raise a reasonable doubt, in view of the lack of corroboration and the absence of eye witnesses. It was a case where the jury had to determine whether to believe the word of the complaining witness or the word of the defendant. To be sure defendant's account of the incident strains credulity, but the complaining witness' account is lacking in certitude in several respects; and this condition of the evidence, plus a showing that each had criminal records, which weighs heavily in connection with credibility, could well produce a state of mind that neither the complainant nor the defendant was telling the truth, that the full truth had not been told by either, and therefore the Government had not established guilt beyond a reasonable doubt.
Under these circumstances, pursuant to Smith v. Pollin, supra, I "indicate" that I am "inclined" to grant the motion.
This is sufficient under the Smith case to justify a motion for remand in the Court of Appeals.
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