(concurring).
The final paragraph of the court’s opinion gives an adequate and unanswerable reason for affirming the action of the trial court. The trial judge set forth at length why the so-called newly discovered evidence that the appellant’s courtesan and accomplice was ready to change her story again and absolve appellant was insufficient to persuade the court to take it seriously. He referred to this witness’ “utter unreliability”, her changes of her story again and again, and the fact that the verdict could not be said to be based on her testimony.
I am not quite prepared to say that the many technical defects in the motion for new trial were such that the court could not have granted it, had the judge been impressed by the offered new evidence. In recent years Criminal Rule 52(a) 1 has been given a very broad application.2
For this reason I would prefer to base my concurrence on this single ground.
. “Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
. For example, see the following cases disapproving actions of this court on the basis of this rule or of the corresponding Civil Rule 61: United States v. State of Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405; Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867; and Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. Contrast the decisions of this court cited in the dissenting opinion in United States v. State of Arizona, 9 Cir., 206 F.2d 159, at page 162, footnote 3.