Fogel v. United States , 167 F.2d 763 ( 1948 )

McCORD, Circuit Judge.

Samuel Hannah Fogel was indicted on January 22, 1947, for having failed to register for the draft on or about February 16, 1942, in violation of the Selective Training and Service Act of 1940, as amended, c. 720, 54 Stat. 885, 50 U.S.C.A. Appendix, § 301 et seq.

On February 19, 1947, having waived a trial by jury, Fogel was tried by the court, convicted, and sentenced to serve eighteen months in a penitentiary, and to pay a fine of $1,000.00. From his judgment of conviction and sentence thereon appellant duly appealed to this court, and on June 12, 1947, the judgment of the district court was here affirmed. Fogel v. United States, 5 Cir., 162 F.2d 54.

On August 21, 1947, appellant petitioned the Supreme Court of the United States for writ of certiorari to review the affirmance of his conviction. Certiorari was denied on October 20, 1947. Fogel v. United States, 332 U.S. 791, 68 S.Ct. 99.

Thereafter, on November 3, 1947, and prior to his commitment under the mandate, appellant filed a motion for a new trial on the ground of newly discovered evidence, as permitted and allowed under Rule 33, Rules of Criminal Procedure of the District Courts of the United States 18 U.S.C.A. following section 687. Hearing on the motion was had before the district court on November 12, 1947; two days later, after evidence and argument of counsel thereon, the motion was denied. Appellant thereupon filed this appeal, alleging the district court abused its discretion in overruling his motion for a new trial.

At the hearing appellant introduced, as newly discovered evidence, various exhibits, affidavits, and the testimony of several witnesses, all purporting to establish that on the date he was charged with the offense of failing to register for selective service, appellant was over the maximum registration age of 45 years, and was therefore not guilty of the crime as charged in the indictment. In support of his contention, appellant offers a certified copy of the entry of one Schloime Vogel into the United States, on June 30, 1913. This emigrant was then listed as 20 years of age, having come to this country to join his brother, one Josef Vogel, then residing in Philadelphia, Pennsylvania. A certified copy of one Sam Hannah Fogel’s registration for the draft during World War I was also introduced, on which Fogel’s age, as of June 5, 1917, was listed as 23 years. Two affidavits of Philadelphia residents further purport to establish that Schloime Vogel and appellant are one and the same person.

Appellant contends that these affidavits and exhibits, together with-the'testimony of several witnesses introduced .to substantiate the information listed thereon, prove that he, Samuel Hannah Fogel, is one and the same person as the emigrant, Schloime Vogel, who entered the United States in 1913 when he was 20 years of age, and registered for the draft during World War I when he was 23 years of age; that this newly discovered evidence shows that he was at least 48 years old on February 16, 1942, which date was set for the registration of only those males between the ages of 19 and 45; that he was therefore not required by law to register on that date, and is not guilty of the crime charged.

The Government’s testimony sharply contradicts that of appellant, as to whether he is actually the same person as Schloime Vogel. The evidence reveals a wide discrepancy in physical descriptions between the emigrant, Schloime Vogel, and the appellant, Samuel Hannah Fogel. The description of the former, as listed in the certified copy of his record of entry into the United States, listed that emigrant as being 5 feet, 5 inches in height, possessing a fair complexion, light brown hair, gray eyes, with birthplace in Rozyny, Russia; whereas the appellant, according to practically undisputed testimony, has been since the first World War a man 5 feet 8 inches in height, with brown eyes, black hair turning gray, dark complexion, with place of birth in Racianz, Poland, or Melva, Russia. It was further shown that appellant’s representations of his age, as purportedly revealed by these exhibits, was inconsistent-with many other statements concerning his age, some of which were under oath, made by him to various government officials, to a number of life insurance companies when filling out applications for insurance over a period of years, on all of which he stated he was born in 1898, and even to a deputy United States Marshal at the time of his arrest. Before his case arose, with the possible exceptions of the emigration certificate and his registration for World War I, appellant seems consistently to have maintained his year of birth was 1898. Now and since the time of his trial he maintains he was born in 1894.

It is without dispute that appellant not only failed to register for Selective Service on February 16, 1942, the date set by Presidential Proclamation No. 2535 for the registration of all males between the ages of 19 and 45, but that he further failed to register on and after April 27, 1942, the date set by a second Presidential Proclamation No. 2541, 50 U.S.C.A.Appendix, § 302 note for the registration of all males between the ages of 19 and 65. There is no dispute that appellant is under 65 years of age.

We are of opinion the trial court properly exercised its discretion in overruling appellant’s motion for a new trial. It is well settled that the action of a trial court in this regard is not subj ect to review unless it be clearly shown that the court abused its discretion, or failed to exercise it. Prisament v. United States, 5 Cir., 96 F.2d 865; Luke v. United States, 5 Cir., 84 F.2d 711, 712; Nichols v. Republic Iron and Steel Company, 5 Cir., 89 F.2d 927, 928.

The record clearly shows that the evidence here presented is not newly discovered. Gwinn v. United States, 5 Cir., 294 F. 878, 880; Payton v. Ideal Jewelry Mfg. Co., 1 Cir., 7 F.2d 113, 114; Coleman v. State, 108 Tex.Cr.R. 323, 300 S.W. 59, 60; Emanuel v. State, 112 Tex.Cr.R. 412, 16 S.W.2d 1083, 1084. The rule has long been established that evidence obtained after trial, in order to be newly discovered in a legal sense, must have been unknown and unavailable to the defendant himself at the time of his trial. Appellant here has wholly failed to discharge his burden of. proving that the additional evidence he now seeks to introduce is, in fact, newly discovered, and that the failure to produce same at the time of trial was not due to any lack of diligence on his part. Prisament v. United States, 5 Cir., 96 F.2d 865, 866; Weiss v. United States, 5 Cir., 122 F.2d 675, 691, 692.

If it be conceded that appellant and Schloime Vogel are one and the same person, which we in no wise do, the conclusion is still inescapable that he knew this at the time he was indicted and tried. Such information, if true, was by its very nature peculiarly within his knowledge, and therefore could not be newly discovered as far as he was concerned. At the time of his trial appellant knew, or should have known, the approximate date of his arrival in this country, the name under which he was registered, the place from which he sailed, the port at which he landed, the name of the ship on which he sailed, the country and place of his birth, and all other information now offered as newly discovered evidence. Yet throughout his trial and the hearing on his motion for a new trial appellant claimed his constitutional right, and declined to offer any testimony whatever in this regard. Moreover, it appears that no order for a continuance was ever sought from the court, on the ground that the evidence now sought to be introduced was not available to appellant at the time of trial. Absolutely no facts whatever are alleged from which we may reasonably infer diligence on the part of appellant, although he was and is represented by able counsel. It further appears that although appellant waived his right to a jury trial, he now urges that he is entitled to a reversal in order that a jury may now pass upon the alleged newly discovered evidence, all of which was peculiarly within his personal knowledge at the time of his trial.

When we come to consider the evidence fully and fairly, as we have attempted to do, we find that the trial court in no wise abused its discretion in overruling appellant’s motion for a new trial, but exercised a patience and forbearance in hearing and weighing the evidence and argument thereon which bespeaks his earnest desire to ascertain the true facts. The defendant has never been imprisoned but has at all times been permitted to make bond and carry on his business since the return of the indictment. To grant a new trial to this defendant on the evidence as disclosed by this record, is an invitation to make a mockery of justice.

We find no reversible error in the record and the judgment is therefore

Affirmed.