On Rehearing
McCALEB, Justice.We granted a rehearing herein to reconsider our ruling that the trial judge abused his discretion in refusing appellant’s motion for a new trial founded on newly-discovered evidence. The facts of the case, so far as pertinent to our discussion, are as follows:
Appellant, Mervin Bell, was tried and convicted of armed robbery (R.S. 14:64), having been identified as one of the two young Negro thugs who set upon one Roland Ledet, a collector for an installment furniture store, while he was making his collections from tenants in the St. Bernard *353Housing Project in the city of New Orleans, threatening him with straight razors and demanding money. Ledet resisted but,. after being severely cut across the chest with a razor, submitted to the robbery and $690 in cash and a portable radio were taken from his person. His assailants then fled but, during their escape from the immediate scene, were seen and recognized by one of the tenants of the housing project, one Edwina Stark, who knew both of them. This young colored woman gave the police this information shortly after their arrival at the housing project. A search was conducted and, within a few hours, Bell, one Irvin Johnson and one Clarence Lipscomb were found together in a theatre. They were arrested and conveyed to Charity Hospital, where Ledet was being treated for his wounds. After inspection, Ledet recognized Bell as one of the robbers but did not identify either Johnson or Lipscomb as his other assailant.
Thereafter Bell, Lipscomb and Johnson were charged with armed robbery but only Bell was brought to trial, the case being nolle prosequied as to Lipscomb and Johnson. The other assailant, whom the eyewitness, Edwina Stark, said was one “Nicholas” Brown, had not been apprehended or charged at that time.
At the trial, appellant was positively identified by Edwina Stark and Ledet, as one of the two holdup men. Bell’s defense was in the nature of an alibi. Lipscomb, his wife and Johnson were his witnesses and they testified that Bell had been in Lipscomb’s apartment in the housing project the entire night before the robbery and all of the following day, leaving in the late afternoon, sometime after the commission of the crime to go to the movie theatre where the three men were arrested. Johnson further professed that he was an eye-witness to the robbery; that he left Lipscomb’s apartment on the day thereof and, on his return, he saw the robbers (whom he knew) fleeing the scene; that one was a man named Brown and that the other was one James Davis who was, at the time of trial, serving a year in the parish prison for another offense. Davis was brought into the courtroom and Johnson identified him as one of the holdup men.
After Bell’s trial and conviction, but before sentence, a Harold Brown was arrested as one of the participants in the crime and he made a voluntary confession, stating that his associate was one “Charles Johnson”. Based on this confession, Bell’s counsel filed a motion for a new trial alleging that this was newly discovered evidence and that, since it exonerated Bell, a new trial should be granted. At a hearing held on the motion for a new trial, Brown reiterated the statement made in his confession that he and Charles Johnson were the robbers and that Bell was not a participant. This hearing was continued and, a few days later, Brown was again placed on the stand. On that occasion, he testified that the man to whom he referred as Charles Johnson, was actually James Davis, the same individual that Irvin Johnson had identified at the trial as the man who had committed the robbery with Brown.
In his lengthy per curiam, which is attached to and made part of the dissenting opinion filed on the original hearing in this Court, the trial judge, after a painstaking consideration and analysis of all of the evidence, concluded that the motion for a new trial was not well founded (1) for the reason that the last evidence given by the newly-discovered witness, Brown, was merely cumulative and corroborative of the evidence given at the trial by Bell’s witness, Irvin Johnson, and (2) because, even if Brown’s evidence be regarded as newly-discovered, his testimony was incredible and, hence, “ought not” produce a different result at another trial.
In the majority opinion on first hearing, the Court quoted approvingly from State v. Gray, 192 La. 1081, 190 So. 224, wherein it is stated that applications for new trials based on the ground of newly discovered evidence should be received
*354with extreme caution (State v. Stovall, 154 La. 544, 97 So. 854; State v. Lee, 173 La. 966, 139 So. 302) and that the granting or refusing of such motions rests within the discretion of the trial judge whose action will not be disturbed by this Court save in cases of clear abuse. State v. Barton, 178 La. 859, 152 So. 546; State v. Brandle, 187 La. 945, 175 So. 628. In the observance of these precepts, it has been many times held by the Court that, where the trial judge finds the newly-discovered evidence to be suspicious and of doubtful credibility, he is justified in refusing a new trial and his exercise of discretion will not be disturbed on appeal. State v. Williams, 38 La.Ann. 361; State v. Hill, 135 La. 625, 65 So. 763; State v. Glover, 140 La. 726, 73 So. 843; State v. Patterson, 150 La. 114, 90 So. 532; State v. Gardner, 157 La. 116, 102 So. 89 and State v. Saba, 203 La. 881, 14 So.2d 751.
It was because of the long standing jurisprudence that the drafters of our Code of Criminal Procedure of 1928 incorporated therein a special Article (No. 511) setting forth in detail the conditions which must appear in order to entitle the defendant in a criminal case to a new trial on the ground of newly-discovered evidence. After declaring that the evidence must be newly discovered and could not have been known before the jury trial, notwithstanding the exercise of reasonable diligence, Article 511 (R.S. 15:511) provides that it must affirmatively appear “that said evidence is not merely cumulative; that it does not merely corroborate or impeach the credibility or testimony of any witness examined on the trial; that it is so material that it ought to produce a different result than the verdict reached, and that it is admissible. These allegations must be recited in the motion and be sworn to by the accused.” 1 (Emphasis ours.)
Although he concluded that the last evidence given by Brown was merely corroborative of the trial evidence of Irvin Johnson, the district judge’s main reason for denying the motion for a new trial was that Brown’s testimony was so suspicious and incredible that it “ought not” produce a different result at another trial.
A review of the facts outlined in the judge’s per curiam has convinced us that he is correct on both grounds. First, we think the judge properly assumed that Brown’s last testimony (that James Davis, whom he stated he thought was named Charles Johnson, was his associate in the robbery) would be the testimony that he would give at another trial. This evidence does not meet the requirements of R.S. 15:511 as it is merely corroborative of the testimony given at the trial by Irvin Johnson. Being merely corroborative of testimony which was heard by the trial jury, the evidence is not newly discovered although Brown is a newly-discovered witness.
- Secondly, and a fortiori, after considering the judge’s per curiam, in which he sets forth in detail the reasons for his disbelief of Brown’s testimony exonerating Bell, we think he rightly concluded that this evidence should not cause an impartial jury to doubt the veracity of the statements given by Ledet and Edwina Stark. Under the codal article and our uniform jurisprudence, the test to be employed by the district judge in considering a motion for a new trial based on newly-discovered evidence is not simply whether another jury might bring in a different verdict-—this is always a speculative matter—it is whether the new evidence is “so material that it *355ought to produce a different result than the verdict reached, * * * If the judge finds that the newly-discovered evidence is suspicious or incredible (as in this case) then he properly exercises his discretion in denying a new trial as such evidence ought not produce a different result in the matter.
The case of State v. Dimm, 153 La. 95, 95 So. 414, relied on in the original opinion for the result reached, is distinguishable on the ground that, there (unlike here), the credibility of the newly discovered witness was not even brought into question.
For the reasons assigned, the conviction and sentence are affirmed.
HAMITER, J., dissents, being of the opinion that the original decree should be reinstated. HAMLIN, J., dissents with written reasons.. We take note in this ease that the motion for a new trial does not comply with the mandate of Article 511 in that it is not alleged therein that the testimony of Harold Brown is so material that it ought to produce an acquittal of Bell at another trial and in that the motion is not sworn to by Bell himself, as required by the statute, but by his counsel. However, since the State has not objected to this procedural deficiency, we consider that it has been waived.