The indictment charged, and the defendant was convicted of, robbing in company with two others, one Campbell, of twelve dollars in money and a knife, in the city of Buffalo, shortly after twelve o’clock on the morning of June 15, 1902. The conviction was founded upon the testimony of Campbell, who testified that he *149recognized the defendant as one of his assailants and subsequently identified him in the police station.
Campbell testified that after going into the “ Frog House ” saloon on Genesee street about twelve o’clock and drinking a glass of beer he started for home and on his way was attacked, knocked down and robbed by the defendant and two other men. Campbell had drunk beer in four different saloons shortly before the alleged robbery and it was “ pretty dark ” where the crime was committed. According to his testimony, the defendant, with his companions, returned to this saloon and were arrested shortly afterwards by the police, but neither the money nor the knife was found in their possession. Ho proof was offered on behalf of the defendant, and the evidence presented was sufficient'for the jury to find the defendant guilty of the crime charged.
Upon the motion for a new trial the affidavits of two young men, each serving a sentence in the State’s prison at Auburn for robbery, were presented to the court, setting forth that the defendant was in the saloon with them during the entire evening when the robbery was committed. Very little credence can be given to these affidavits in view of the character of the affiants.
In addition to those affidavits, however, the defendant included among his moving papers the affidavits of John Foley, Lena Prezusser and Florence Preusser. Foley testified that he was at the Frog House saloon from seven-thirty on the evening of June fourteenth until about one-thirty the next morning; while he w.as in the saloon, and about ten o’clock,, the defendant and the man Murray came in and passed through into the dining room in the rear of the saloon, and that he, Foley, followed them into that room, all of them remaining in there with the two Preusser girls until the time of the arrest, except Foley, who started for home about one-thirty, and after going a short distance saw the police at the saloon. Others were in and out of the saloon during this evening.
The. facts contained in Foley’s affidavit are corroborated by the affidavits of the two girls, who are unequivocal in stating that Cameron, the defendant, remained in the dining room continuously from ten o’clock until the time.of his arrest. These three witnesses are not impeached, nor is the character of either of them assailed by any counter affidavits presented on behalf of the People. There is *150nothing in the record showing any bias or interest to warrant the charge that these people have committed perjury. The fact of course does appear that all were in this saloon associating familiarly with young men of bad character. "What knowledge these affiants had of the character or reputation of the defendant or of his associates in the saloon does ngt appear. The two Preusser girls apparently lived in the saloon, their parents were present during the evening, and while their associates necessarily would not be the-most refined people, yet we are not to infer from this fact that they would testify falsely.
In addition to these papers the affidavit of Campbell was used upon the motion, in which he stated that on reflection he had come to the conclusion he was in error in testifying upon the trial he positively identified Cameron as one of his assailants on the night of the robbery, and then goes on to say : “ That deponent does not now say that-it was not the said Cameron, but deponent does say thát he is not as positive as he was at the time he testified; that in thinking the matter over he knows that it was not the said Cameron who assaulted him.”
Campbell was living in Ontario, Canada, at the time he verified this affidavit: A proposed affidavit had been prepared' by the counsel for the defendant, and by his clerk submitted to Campbell, who directed changes to be made in it, which was done. The clerk and the notary before whom the affidavit was verified make affidavits in which they say that Campbell said he did not believe Cameron committed the robbery.
We have, therefore, this situation presented: The affidavits of three apparently disinterested persons whose reputation is not impugned- by any one, setting forth facts, which, if true, show that Cameron, bad as he may be, did not commit the crime of which he has been convicted. Then we have the affidavit of the complaining, witness who alone connected the defendant with the crime, asserting that he was in error 'in testifying that the defendant was one of those who assaulted and robbed' him.
Desirable as it is that -criminals should be brought to justice, it cannot be that the most rigorous enforcement of our criminal law will justify the conviction of this young man of twenty years and his imprisonment for nineteen years without a further opportunity to prove his innocence.
*151It is urged that a complaining witness may often be induced after a trial to change his testimony upon being requested so to do upon behalf of a defendant. If that change goes to the very pith of his testimony, and, if true, shows that the one charged with the commission of a grave crime is innocent, courts should not hesitate to allow the convicted person a' new trial, especially where the changed story is corroborated by other proof, as in this case. A young man should not be compelled to serve out a long term in a State’s prison, the only warrant for which is the testimony of a man, certainly not of high character, who solemnly declares he testified falsely when he swore the convicted man committed the crime.
Cameron is of unsavory character. He undoubtedly is of no benefit to society, and probably it is better for the public that he be in State’s prison. He is now incarcerated, however, for a particular crime, and even a bad man should not be imprisoned for an offense which subsequent developments indicate he did not commit. It is urged that he was not vigilant, if innocent, in preparing for his defense, and that he did not testify in his own behalf. When arrested he had no money; he did not advise his father that he was accused of a crime. Counsel was assigned him, who advised him not to be sworn, and Mr. Ward states in his affidavit that he was informed by this counsel that he visited Mrs. Piersall, the mother of the Preusser girls, but obtained no information from her. Hpon motions of this character, involving the liberty of a young man for many years, we ought not to adhere too closely to technical rules of practice. The controlling rule in the disposition of these motions should be that if upon another trial there is a fair likelihood that the defendant will be able to establish his innocence, the opportunity should be afforded him. The suggestion that by reason of the retraction of Campbell there is little prospect of securing another conviction has no merit. On the contrary, it tends to establish the fragile character of the People’s case.
We think, in view of these affidavits, the defendant should have another trial.
HiSoook, J., concurred.
Judgment of conviction and order denying motion for new trial affirmed.