
    UNITED STATES of America v. Joseph Carter BELLAMY, Walter Eddie Bellamy, and George David Bellamy.
    Cr. No. 23091.
    United States District Court E. D. South Carolina, Florence Division.
    April 4, 1963.
    
      Terrell L. Glenn, U. S. Atty., Columbia, S. C., for the United States.
    Barney Dusenbury, Florence, S. C., for defendants.
   WYCHE, District Judge

(sitting by designation).

The above case is before me on motion of the defendants for a new trial upon the grounds stated in the Motion filed February 13, 1963.

In support of their Motion, the defendants submitted two Affidavits. One of these was made by Barney D. Dusenbury, Esquire, the defendants’ counsel. This Affidavit is directed to the request by defendants’ counsel of the United States Attorney for the production of any statement which one William Horace Bellamy may have given in connection with the investigation of this case. In opposition thereto, the United States Attorney has filed his Affidavit in which he states that he informed defendants’ counsel prior to the trial of the case that he did not intend to call William Horace Bellamy as a witness at the trial of the case and that when the request for such statement was made, he refused upon these grounds. William Horace Bellamy was not present at any time during the trial of this case and was not called as a witness by the Government. It was not incumbent upon the Government to furnish any statement it may have had of William Horace Bellamy’s to defendants’ counsel under these circumstances.

Further in support of their Motion, the defendants filed the Affidavit of William Horace Bellamy given the 24th day of January, 1963. William Horace Bellamy entered a plea of guilty on October 9, 1961, to a four Count Indictment charging him with violations of Title 18, Sections 2115, 1707 and 500, United States Code, and was sentenced to the custody of the Attorney General for a period of five years. The offense involved in the conviction of William Horace Bellamy and the defendants herein all arose out of the same general offense, i. e., the robbery of the United States Post Office at Longs, South Carolina, and subsequent cashing of the altered, forged and counterfeited money orders which were stolen at the time of the robbery. William Horace Bellamy gave his Affidavit herein more than one year after the imposition of sentence upon him for an offense arising out of the same transaction and after conviction of his three brothers for these offenses. Under these circumstances, the Affidavit is not such newly discovered evidence as would warrant the granting of the defendants’ Motion for a new trial. The record reflects that the defendants’ counsel interviewed William Horace Bellamy prior to the trial of these defendants, that he was aware of William Horace Bellamy’s knowledge of the facts surrounding the offense, that William Horace Bellamy was available to defendants’ counsel and that the Government offered to present him at the trial if the defendants desired to call him as a witness.

After consideration of the Motion, it is my opinion that the same should be denied. It is, therefore,

Ordered that the Motion of the defendants in the above entitled case for a new trial be and the same is hereby denied.  