(dissenting):
I have a different view of this case. Campbell was indicted for housebreaking, tried, and convicted. He appealed in forma pauperis, this court appointed an outstanding member of our bar as his attorney, and the conviction was affirmed. Meantime the new attorney moved for a new trial on account of newly discovered evidence, two alleged alibi witnesses. The trial judge held a hearing on the motion while the appeal was pending here, and the two alleged alibi witnesses were presented and testified. The District Judge denied the motion. I would leave the matter there.
In the first place, the motion was clearly contrary to the rules for the allowance of such a motion.1 These witnesses were known before the trial. In the second place, the only possible justification for a new trial to receive this testimony would be that the evidence thus proffered might possibly affect the verdict. The trial judge saw and heard these alleged witnesses and must have derived a definite idea as to the possible effect on a verdict. He denied the motion. Absent some affirmative indication that he erred, I would rely upon his judgment. I would not set up an elaborate process of hearing, findings, etc., merely to check out some vague remote possibility.
In the next place, we are now overruling our appointee as defense counsel. He talked to trial counsel but did not call him to the witness stand. No question concerning the competence of trial counsel was raised by anybody in the case. We probed into it during oral argument and entirely off the record. Moreover the inquiry was not why retained trial coun*137sel did not call these witnesses at the trial but was why counsel appointed by us for the appeal did not call to the witness stand at the hearing on the motion his predecessor to explain why these witnesses were not called. I am satisfied to rest on the judgment of our appointee.
Finally, what are we going to do if the trial judge has a hearing and trial counsel, being called as a witness, says he did not call these alleged witnesses for any one of a dozen good reasons? Are we going to say that, although we have not seen these or any of .the other witnesses, or the accused himself, we are of opinion that these two witnesses should be presented to a trial jury and therefore we set aside the conviction? If we are not prepared to do that, we ought not instigate so elaborate a proceeding. My brethren are not now dealing with, or purporting to deal with, the judgment of conviction. They say they do not intend to disturb the District Court’s denial of a new trial. They are dealing with, or attempting to deal with, the actions of counsel in presenting the motion for a new trial. It seems to me that affair could be handled better by an informal session with the lawyer. I am not able to visualize the future of the course now being inaugurated.
I add that proffers of alibi witnesses picked up in or about a poolroom some months after conviction for a felony offense leave me singularly unimpressed. And, when an experienced trial judge hears them and denies a new trial, my state of mind solidifies. I would affirm.
JUDGMENT
PER CURIAM.On May 16, 1966, this court filed an opinion and' judgment remanding the record in the above-entitled case No. 19,411 to the' District Court for further proceedings consistent with the opinion of this court and retaining jurisdiction over the appeal pending disposition of the proceedings on remand. Pursuant thereto a supplemental record was filed by the District Court. Appellant thereafter filed memoranda.
Upon consideration whereof, it is ordered and adjudged by this court that the judgment of the District Court on appeal and the subsequent denial by the District Court of appellant’s motion for new trial are hereby affirmed.