The majority of the court are of the opinion that error prevailed in overruling defendant's motion for a new trial. Grounds 4 and 5 of said motion were fully proven without dispute or conflict and are as follows:
"4. For that since the evidence closed in the case, and since one of the arguments was made by the State in the case, the defendant has discovered evidence which he did not know at the time of the taking of the testimony, and which he could not have known by the use of due diligence.
"5. For that since the evidence closed in the case, and since one of the arguments was made by the state in the case, the defendant has discovered evidence which he did not know at the time of the taking of the testimony and which he could not have known by the use of due diligence, and said evidence consisted of this: During the taking of the testimony Cicero Thompson, a witness for the State, told John Doss that he had not been on the witness stand yet, and he would not have sworn anything against the defendant if it had not been for the mother of Cicero Thompson, and the witness said he had to swear against Jim Huff because she, his mother, wanted him to do so."
The state witness Thompson testified on the trial to the effect that on the night before the killing next morning, the defendant, Huff, was at his (witness') home and told witness he would kill the deceased. And on the hearing of the motion for a new trial witness John Doss testified:
"I was out there at the door the day the defendant was being tried for murder. I know Cicero Thompson, a witness. He is the same Cicero Thompson that testified when this case was tried before. On Monday afternoon he walked up to the door and pulled it open and was standing there and I asked him if he had been put on the stand yet and he said he hadn't, then he said: 'You know, I would not have testified against Huff like I did if it hadn't been for my mother, my mother asked me to and that's the reason I testified like I did and you would, wouldn't you?' I said, 'I would have told it just like it was.' That was all that was said. I didn't tell Jim Huff about it that afternoon. I didn't tell anybody about until next morning and the first person I told was S.W. Tate, the Attorney for Huff. It was not far from nine o'clock when I told him. He was on his way to the court house to argue the case at that time. I stopped him about eighty or a hundred feet from the court house and told him and that was the first time I told it. I had not told Jim Huff or any lawyer or anybody connected with the case until I told S.W. Tate that morning." And upon cross-examination this witness testified: "Thompson and I were at the door before he testified. What he said was this: 'You know I wouldn't have testified against Huff like I did if it hadn't been for my mother, my mother asked me to and that's the reason I testified like I did and you would too.' I said, 'I would have told it just like it was;' and walked off left the boy."
Witness Thompson's mother referred to is the mother also of the widow of the deceased man Pounds.
The foregoing testimony was not denied or in any manner disputed, and we are of the opinion that the motion for new trial by defendant should have been granted, and that the substantial ends of justice require this order at our hands. We are clearly of the opinion that the newly discovered evidence, under the undisputed facts of this case, was *Page 510 highly important, and if this evidence had been before the jury, its effect might have caused the jury to render a different and more favorable verdict for defendant. The newly discovered evidence was without dispute. It was not cumulative in the sense the law implies to that term. It was further fully established that the failure to earlier discover this evidence was not due to want of diligence upon the part of the defendant, or his counsel. Under these conditions, this appellant was entitled to the benefit of this material evidence.
It affirmatively appears that this matter was brought to the attention of the court by appellant's counsel while the trial was in progress and immediately upon having been told of the statement. Also that appellant insistently undertook to be allowed to introduce this evidence before the jury, but was not allowed to do so.
For the error in overruling defendant's motion for a new trial, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded. Inman v. State,22 Ala. App. 344, 115 So. 704.
Reversed and Remanded.
RICE, J., dissents.