are now dim and only Kreffka and Daley claim to have good present recollections, and they are completely at variance.
Even if we assume that the testimony of Lieutenant Daley was perjured, false or mistaken, the petitioners are not entitled to a new trial under 28 U.S.C.A. § 2255. Taylor v. United States, 8 Cir., 1956, 229 F.2d 826, 831. As was there said:
'Perjured testimony, standing alone, is not sufficient to present any issue to this Court under Section 2255, Title 28, U.S.C.'
It is clearly established that the petitioners must to more to void their conviction than to show the conviction was secured by perjured testimony. They must also show that the prosecution used such testimony knowingly and willfully to secure the conviction. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791; United States v. Rutkin, 3 Cir., 1954, 212 F.2d 641; Cobb v. as well as a motion under 28 U.S.C.A. Ryles v. United States, 10 Cir., 1952, 198 F.2d 199. The petitioners admittedly make no such showing in the instant proceeding and for that reason their motion under 28 U.S.C.A. § 2255 must be denied.
Petitioners in their brief emphasize that their motion should be considered as a motion for a new trial under Rule 33, Fed.Rules Crim.Proc., 18 U.S.C.A., as well as a motion under 28 U.S.C.A. § 2255.
In the light of the learned counsel's argument, we shall consider the motion as one for a new trial under that rule. In this type of proceeding, the label on the petition or motion is not determinative. United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248.
It is requisite that the motion be treated as made on the ground of newly discovered evidence since it was not made within five days after the verdict of guilty was rendered. United States v. Smith, 331 U.S. 469, 67 S. Ct. 1330, 91 L. Ed. 1610; Kirksey v. United States, 1954, 94 U.S.App.D.C. 393, 219 F.2d 499; Oddo v. United States, 2 Cir., 1949, 171 F.2d 854.
A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge, United States v. On Lee, 2 Cir., 1953, 201 F.2d 722, and the grant of a new trial on that ground is not generally favored, Casey v. United States, 9 Cir., 1927, 20 F.2d 752, affirmed 276 U.S. 413, 48 S. Ct. 373, 72 L. Ed. 632.
To warrant the granting of a new trial on the ground of newly discovered evidence, there must ordinarily be present and concur five verities, to wit: (a) the evidence must be in fact newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647.
Doubt exists that the offered evidence is, strictly speaking, 'newly discovered' for the purposes of Rule 33, Fed.Rules Crim.Proc. It appears that the records of Kreffka's conviction in the Worcester County Court were available prior to trial to corroborate the testimony which he elected to give on direct examination. Indeed the records of the Worcester trial were probably the best evidence of what Kreffka undertook to prove by recollection. Cf. Thompson v. United States, 1951, 88 U.S.App.D.C. 235, 188 F.2d 652; Saunders v. United States, 1951, 89 U.S.App.D.C. 291, 192 F.2d 409.
But even if we assume that the offered evidence was in fact newly discovered, it would only tend to impeach the credibility of Daley, a rebuttal witness for the prosecution, whose testimony was offered to impeach the credibility of defendant Kreffka. Daley did not testify as to any substantive element of the crime charged against the defendants.
Ordinarily, newly discovered evidence which goes to the impeachment of a witness and not to facts at issue in the case is not sufficient ground for a new trial. Balestreri v. United States, 9 Cir., 1955, 224 F.2d 915; Goodman v. United States, 3 Cir., 1938, 97 F.2d 197.
In addition, the evidence offered on a motion for a new trial must be such that it would probably result in the acquittal of the defendants. United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647. And in the consideration of such a motion, the trial judge may utilize the knowledge gained from presiding at the trial as well as the evidence offered at the hearing. United States v. On Lee, supra; Balestreri v. United States, supra.
With regard to Kreffka's credibility, he himself has seriously damaged it by his testimony pertaining to the prior felonies of which he was convicted. Of course, no one can say what effect the jury gave to Daley's testimony in deciding that both Kreffka and Derosier were guilty, but it is the opinion of the court, after due consideration of our knowledge and observations of the witnesses and the testimony on the merits at the criminal trial, that the evidence now offered, even if newly discovered and even if it conclusively shows that Daley gave false testimony -- which is far from the fact, is not such that would probably result in an acquittal of the defendants. Nor do we believe that without the alleged false testimony of Daley the jury might have reached a different verdict.
Cf. United States v. Johnson, 7 Cir., 1945, 149 F.2d 31. Therefore, the motion for a new trial should be denied.
An appropriate order will be entered.