
    Supreme Court-Kings Special Term.
    January, 1897.
    PEOPLE v. ARTHUR MAYHEW.
    Cbiminal law—New tbial—Newly discovebed evidence.
    Subdivision 7, § 465 of Code of Criminal Procedure does not give the defendant the right to a new trial, irrespective of the truth or falsity of the testimony given by an accomplice on the application, though it ap. pears that such evidence, if given on the former trial, would probably have changed the verdict.
    Motion for a new trial on the ground of newly discovered evidence.
    Chas. W. Brooke and William T. Emmet, for the motion.
    Daniel Noble, Dist. Atty., opposed.
   KEOGH, J.

On the trial, Waynes testified that he was with the defendant at the time the murder was committed; that he saw Mayhew, strike Stephen Powell a blow with a heavy substance in the end of a long-stocking; that Mr. Powell fell, and was at once robbed by the defendant; and that he and Mayhew then ran along several streets,—their course, as well as what they did as they ran, being described by him with great particularity. Waynes after-wards formally pleading guilty to the crime of manslaughter, as an accomplice of Mayhew in the murder of Mr- Powell, and was sentenced to 15 years imprisonment. On this application for a new trial, Waynes swears that all this testimony of his on the trial was false; that he did not see the defendant strike Mr. Powell, and, was not with him at the time Mr. Powell was killed. The jury which saw and heard him testify, has decided that his testimony then was the truth. It was corroborated by striking circumstantial evidence.

Judge Bartlett, writing for the court of appeals, in a clear and most impressive review of the evidence given on the trial of May-hew, says:

“ After a careful study of this record, we are of the opinion that the verdict of the jury, convicting the defendant of murder in the first degree, is amply j ustified by the evidence. The corroborating evidence from the time the defendant and his accomplice approached the scene of the murder, until the termination of their flight, at Clemens’ saloon, is most persuasive and impressive, strongly illustrating that strange fatality which so frequently accompanies the commission of crime.” 150 N. Y. 346-354 ; 44 N. E. 971-973.

It is contended by the defendant’s counsel that subdivison 7 of section 465 of the Code of Criminal Procedure gives the defendant the right to a new trial, irrespective of the truth or falsity of the testimony given by Waynes on this application, if it appears that such evidence, if given on the former trial, would probably have changed the verdct. The grounds upon which this application is based, and the reasons urged for granting it, do not present a case which comes within the meaning and intention of the statute.

The application is denied.  