
    Fourth Department,
    November, 1908.
    The People of the State of New York, Respondent, v. Joe Polito, Appellant.
    
      Crime — assault—new trial—newly-discovered evidence — sufficiency of moving affidavits considered.
    
    Appeal from a judgment of the County Court of Monroe county rendered on the 29th day of February, 1908.
    Judgment of conviction affirmed. All concurred, except Spring, J., who dissented in memorandum.
   Spring, J. (dissenting):

The defendant was convicted of assault in the second degree in shooting one Carióla, his cousin. There was a sharp question of fact on the trial,, and the evidence justified the verdict, although the proof did not disclose any motive for the assault. Later a motion for new trial was made on the ground of newly-discovered evidence. Several affidavits were presented on this motion in behalf of the defendant. If the affidavits upon which the motion was based are to be relied upon, the defendant did not shoot Carióla.' Daprile and Maglio, two of the affiants, state distinctly that the crime was committed by an Italian named Raimondo, who was personally known to the affiants who were close enough to the transaction to identify the man who committed the crime ; and they completely exonerate the defendant, if their story is correct, and they recount in detail the circumstances of the shooting. Ledata, one of these affiants, tends to exculpate Polito, the defendant, as does Ange, the other witness. Each of these men gives his residence. , Daprile states that he had been arrested for shooting birds and was acquitted on a trial before Justice Benton, so that the district attorney knew whether such a man was in existence. It would have been very easy for the district attorney to ascertain whether the other witnesses were myths. Yet, for some reason, no opposing affidavit was presented to the, county judge on the motion for a new trial on the ground of newly-discovered evidence. We must, therefore, assume that these men were testifying to the truth; or, at least, are honest in their narration. If so, this defendant has been improperly convicted. It is also to be noted that Carióla states distinctly that the defendant was not the man who shot him. I do not think a rigid technical rule should be adopted in an application of this kind where a man has been convicted of a grievous crime. It does not seem to me to be a fair deduction from the affidavits that these men would not testify to these facts before a jury. As already stated, each man gives his residence, has been in this country some time and particularly recites all the facts observed by him in regard to the shooting of Carióla. It is not necessary, it seems to me, for him to add that he will appear and testify to these facts. He is a resident of the city and can be .produced on the trial. I, therefore, vote for reversal of the order denying the application for new trial on the ground of newly-discovered evidence and for the granting of the motion.  