The judgment and order should be affirmed.
While in form the appeal is from both the judgment and order, the argument of counsel is for a reversal of the order merely. No argument could well be made upon the record for a reversal of the judgment. The evidence given upon the trial was clearly sufficient to support the verdict.
The indictment charged the appellant and two other young men *142with the crime of robbery in the first degree, committed June. 15, 1902, at the city of Buffalo, upon one Campbell in the night time, by forcibly and violently taking from his person twelve dollars in money and carrying it away. The indictment was filed June 30, 1902, a plea of not guilty was entered by appellant, and John J. Sullivan, a lawyer of Buffalo, was assigned to defend him. His trial took place July 10, 1902, before the county judge and a jury. A verdict of guilty was rendered, and July 14, 1902, the appellant was sentenced to Auburn State Prison for nineteen years, On the trial it appeared that the complainant was a man working about a lithographing shop where he had been employed for three years. He and his brother and one Reims lived in a house boat at the foot of Genesee street. He owned the boat and had lived in it since the month of September before. On the night in question he went to see á girl at the corner of Broadway and Spruce streets; he left there about eleven-fifteen o’clock, went over to a saloon on Lloyd street and had a drink of beer. He then went to a saloon on River street, met a friend and had a second drink of beer. They left there and went together to the Frog House, a saloon at the corner of Genesee street and the Erie canal, and he had a third drink of beer. They left this, saloon together and his friend went up Genesee street and he went down the street towards his boat. He was entirely sober, had had only three beers, and it was just twelve o’clock. He had to cross a bridge to go to his house boat, and while crossing that bridge he looked around and saw two fellows coming behind him. He went a little further, crossed the Grand Trunk railroad tracks, and just after he was beyond the flag shanty he was set upon by two fellows, while a third stood on the sidewalk keeping a lookout. One of them struck him two blows, kn'ocked him down, got upon him and held one hand over his mouth and the other upon his throat, and the second one went through his pockets and took the twelve dollars and they carried it away. The fellow who was upon him had his face close to complainant’s and he got a fair look at him, and it was the appellant; he could not forget the face because his face was so close, and he said, “ If you holler, you son of a bitch, I will murder you.” He had on a light check cap like the appellant’s, produced at the trial, and which he wore that night. It was not very light there; there was a lamp right by the bridge, one-half way *143between the bridge and the track, and one right at the dock; the electric light was out. After the fellows got through with him they went towards the bridge and stood on the bridge a while. He lay still and watched them. They started away from the bridge and he got up and saw the three go into the Frog House. He reported the matter at once to the police, and they went to the Frog House and arrested the appellant and Murray and Doyle. Appellant had the check cap on that was produced at the trial. It was one-twenty-seven o’clock when they got to the station house. The men were sitting in the back room of the saloon; the front was locked up. Complainant was brought to the station house and identified appellant. On the trial complainant said he was positive appellant was the man who knocked him down and held his mouth and throat. There was no evidence given on the part of the defense. The counsel summed up the case and the court charged the jury.
Upon being examined before sentence, appellant said he was twenty years old, was committed to the State Industrial School in 1896, and again in 1899 for larceny in the second degree; was sent to the Elmira Reformatory in July, 1900, and paroled May 16,1902, and had been sent to the Erie County Pentitentiary for petit larceny on two different occasions.
Upon being sentenced the appellant was taken to prison July 15, 1902. Hothing further was heard about the matter until about the 1st of April, 1903, nine months after the conviction, when counsel was employed and set about to get the conviction set aside and the appellant set at large again. The other two men, Murray and Doyle, who were arrested with appellant and indicted for this offense, were not convicted of the offense, but were convicted about the same time of other highway robberies, and were in State’s prison at Auburn serving their sentences. Counsel talked with these three convicts and took their affidavits in prison. The counsel made his own affidavit as to his conversation with these men and with Sullivan, appellant’s counsel on the trial, and as to what persons employed by him said they learned by talking with other persons, whose names were not stated, and added to all this the statement of his own belief in the premises. This affidavit of counsel is entitled to no consideration. The affidavits of the three convicts themselves were éntitled to little, if any, credence. They were sworn to, but statements *144to counsel when not under oath and sworn to by him should not he considered at all. The statement as to what the lawyer Sullivan said as to the trial, his talk with his client and what investigations he made, not under oath and only sworn to by the present counsel, were not competent or proper. ■ Sullivan’s own affidavit should have been presented. Of course, the affidavit of the present counsel as to his own belief in the premises was of no importance. It was to be expected that the appellant and his two con vict associates would swear to whatever seemed to be necessary to aid the appellant. They concede they were all there at the Frog House on the night in question, and say that they went there together about ten o’clock to spend the evening; that they met there the two Preusser girls, whose mother and stepfather kept the saloon, and Foley, a man who spent more or less of his time about the place; that these persons passed the time there that night playing cards, drinking beer, singing.and visiting in a back room, all excepting Doyle remaining there continuously until the three men were arrested shortly after one o’clock, and of course did not leave there, follow Campbell or commit the robbery upon him. Some statements were made in the affidavits of Doyle and Murray tending to create an impression that other persons committed the , crime. The Preusser girls and Foley also made affidavits corroborating the three convicts, and among other things testified that.appellant and Murray did not leave the room where they were until arrested. It was stated by Doyle that he was in and out of this room, that he saw the complainant and his friend come into the saloon, drink, and go out, and complainant staggered as if drunk; and that he, Doyle, followed them out, but he went back in the room where appellant and the others were and they did not commit the robbery. The character of the appellant and his two associates, Doyle and Murray, is not controverted. They were quite young men, appellant nineteen, Doyle eighteen, and Murray twenty-three years of age, all three were in State’s prison for highway robbery; Doyle on his plea of guilty and the others upon convictions for the same grade of offense. Appellant’s record was bad and had been for years. All these men were received as proper persons to visit and associate with the Preusser girls,' and Foley was also associating with them, not only during the proper hours of the night and until the saloon was closed at twelve *145o’clock, but up to one o’clock and after. How long they would have remained together if the police had not broken up the party cannot be conjectured. Under these circumstances we cannot assume or infer that these two girls and Foley were very credible witnesses, of that their affidavits were entitled to .very much consideration, especially when they were not produced as witnesses on the trial'where they could be subjected to cross-examination, and the weight of their evidence and perhaps their real characters ascertained. The three men were arrested for this crime within an hour after it was committed. If they were in this saloon in this room with these two girls and Foley at the time so that they could not have committed the crime, they all knew it. It was fresh in their minds and they could have been called as witnesses and testified to it on the trial, and the appellant could himself have testified to it also. If, then, the story had been true, and the witnesses had appeared credible, and the jury had believed them, a perfect alibi would have been .established and the appellant would have been acquitted. Ho one of these witnesses was called and the appellant was not himself sworn. Ho proof was given on the trial that these three men were in the saloon when the complainant went in with his friend before the robbery and drank there. Ho proof that either of these men saw the complainant in the saloon and saw them go out and what way the complainant went. These affidavits supplied these facts. . It was agreed by all these witnesses that , the three men were there from a little after ten o’clock, and Doyle swore that he saw the two men coming in to drink and complainant appeared to be intoxicated, and he followed them out and saw them go away, and that he then soon after returned to the presence of the others in the back room of the saloon. These men were bad enough to commit the crime in question. Doyle and Murray did commit crimes of the same nature about that time. There is every probability these three men did leave the room for a sufficient length of time to commit this crime, and'did commit it. The place was in the immediate vicinity, but a few rods away, only a few minutes were necessary to accomplish it, and we cannot, under the circumstances, credit, even the affidavits of the girls and Foley, so far as to establish the alibi now alleged, but not suggested or attempted to be proved on the trial. This is not newly-discovered evidence. It was well known and únder*146stood, if true, at the time of the trial, which took place only thirty days after the commission óf the offense. This kind of practice should not he tolerated in criminal cases. A perfect defense of alibi, susceptible of proof if true to the knowledge of the appellant, the witnesses right in the city where the trial was had and no suggestion of it made at the trial, and this defense is attempted to be sprung upon the court nine months, after, when complainant, whose evidence is absolutely necessary to-a retrial has gone beyond the jurisdiction of the court and his attendance on such retrial cannot be enforced. Our State prisons may readily be relieved of their prisoners if such loose practice is to be indulged in. ■ It is contrary to the well-settled rules applicable to motions for new trials oil the ground of newly-discovered evidence, and the provisions of subdivision 7 of section 465 of the Code of Criminal Procedure. This evidence was not newly discovered. It, has the appearance rather of having been newly mcmufactured. Appellant says he was ashamed to communicate with his father when arrested. His past record would not indicate that he would be ashamed of anything. He pretends to excuse the course of the trial by saying that he had no money to pay counsel, and his counsel advised him not to be sworn. He needed no money to get these witnesses.. His counsel needed to make no investigation to ascertain who the-witnesses were. Appellant knew all of them and could give their-names and tell where they lived. The court should riot rely upon any excuse given by him as to the course of the trial, so far as his. counsel was connected with it. The counsel lived in Buffalo, and if his affidavit could in any way aid the appellant, upon the motion, it should have been, and we assume would have been, produced.
The only additional reason alleged for granting a new trial was. the claim that the complainant had acknowledged he was mistaken in his identification of appellant on the trial. After the affidavits already referred to had been obtained, the complainant was located over in Ganada, and without having any interview with him, counsel prepared a typewritten affidavit in his office and sent a young law student ove;* to see if he could get the complainant to swear to it.. The record does not show what this blank affidavit so prepared contained when it left the counsel’s office. It was changed over there, and what these changes were does not appear. The young law *147student took a notary public of Canada and went and had an interview with the complainant. The • notary testified that there was much conversation between the complainant and the law student and finally the complainant admitted that he did not think it was appellant who had robbed him. The law student testified that he discussed the matter at great length with complainant, and the latter finally stated that he did not then believe that appellant was the man who robbed him. Neither the notary nor the law student, however, statea the talk and discussion had between the two parties which led the complainant finally to express the belief that appellant was not the man who robbed him. Complainant’s affidavit, as sworn to, stated, substantially, that he had been thinking over the said assault and robbery and had come to the conclusion that he was in error in positively identifying the appellant; that it was not a dark night and lie was not under the influence of liquor ; that he did not say it was not appellant, but he was not as positive as he was at the time he testified; that in thinking the matter over he knew it was not the appellant who assaulted him.
Complainant was a laboring man and the man talking with him. was a young law student. It apparently required quite an extended discussion by the law student to procure the concessions from the laboring man, and whether the appellant fully appreciated the exact language used in the affidavit, as he finally subscribed and swore to it, is not entirely clear. After such extended discussion, nine months having elapsed since the robbery occurred, he might well feel less positive as to the identification than he did at the trial. It is a little singular that he should have at last assented to the statement that “ in thinking the matter over he knows that it was not the said Cameron who assaulted him,” when he had already stated in the same paper merely that he was in error in positively identifying him ; that he could not say it was not he, but he was not then as positive as at the trial. The law student put down the last expression a little too strong — that he knew it was not appellant. He could not well have known that. The whole transaction of securing this ex parte affidavit from the complainant was, to say the least, one of questionable propriety. It would have been much wiser and better to have brought the man before the county judge and had a fair examination of him. The effort was to get the best affidavit from him in the *148interest of the appellant which the discussion and talk with him could induce him to assent to rather than to let him talk for himself, and write down what he said and have him swear to that. But little reliance can be placed upon affidavits obtained under these circumstances. This man on the trial positively identified appellant as one of the three men, and he gave good reasons for being positive. He made no attempt to identify the other two. It was not a dark or a light night. He could see across the street, he said, and he did see up the street and see the three men leave the bridge and go into the saloon. The man who knocked him down got upon him and held his throat and covered his mouth, had his face close down to his, and he had such a cap on as appellant wore that night, and he said, “ If you holler, you son of a hitch, I will murder you.” Complainant had a good view of him and he saw him only a few hours after while the face was still remembered and those terrible words were yet fresh in his mind, and he then said he was positive. During the nine months which elapsed before the law student interviewed him, much of the vividness of that view of appellant, accompanied by the words uttered by him, may have passed away. But human evidence must be relied upon, and the evidence of such an identification must be relied upon, otherwise there could rarely be a conviction had for this high crime, which ofttimes results in taking human life. There seemed to be a good deal of it in Buffalo at that time. Here were three young men found guilty of this grade of crime about the same time. The courts should not deal lightly with their convictions. The county judge who presided at this trial lived in Buffalo, heard this motion, examined these papers and denied the motion. We should not reverse his decision.
The judgment and order should be affirmed.
McLennan, P. J., and Stover, J., concurred. Dissenting opinion for reversal by Spring, J., Hiscook, J., concurring.