United States of America, Plaintiff-appellee, v. Walter Earl Stephenson, Defendant-appellant, 448 F.2d 768 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 448 F.2d 768 (5th Cir. 1971)

September 13, 1971
Rehearing Denied October 28, 1971


Henry L. McGee, Jr., Tyler, Tex., (Court-appointed), for defendant-appellant.

Roby Hadden, U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

PER CURIAM:


This appeal is from a conviction for fraud by wire in violation of 18 U.S.C.A. § 1343. We affirm.

The refusal to grant a second continuance at the request of appellant because of the absence of a defense witness was in the discretion of the trial court, and that discretion was not abused. United States v. Pierce, 5 Cir. 1969, 411 F.2d 678. Similarly, the trial court did not abuse its discretion in denying appellant's motion for a new trial on the basis of newly-discovered evidence since that evidence, the testimony of the formerly absent witness, was merely cumulative and did not raise a substantial probability that its admission at a new trial would produce a different result. See United States v. Rodriguez, 5 Cir. 1971, 437 F.2d 940; United States v. Hersh, 5 Cir. 1969, 415 F.2d 835; Reno v. United States, 5 Cir. 1965, 340 F.2d 307; Ledet v. United States, 5 Cir. 1962, 297 F.2d 737, 739.

Affirmed.

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[1] Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty of New York, 5 Cir. 1970, 431 F.2d 409, Part I