The defendant has .been convicted of murder in the second degree for shooting to death one. Balph Di Scibio on the 7th of August,-1904. Di Scibio at that "time was the "proprietor of - an Italian shanty near the .city of Amsterdam, which shanty he occupied as a Store and in which he also . furnished .lodgings for some Italians,, including defendant-, who- were engaged in thfe- construction of a highway in the immediate vicinity. . There is no substantial dispute as to what occurred just before and. just after the fatal shooting. Deceased, and defendant quarreled over a small indebtedness owed by the latter. Deceased insisted, on being paid and that defendant should leave the place. Deceased was in the store'; defendant was .'.outside and they were talking through an open window. The ■■ deceased left the store' .and started in the direction of the defend*720ant threatening personal violence. Defendant drew from his clothing- a revolver which was discharged, the shot taking - effect in the '.body of Di Scibio and causing his death. After' the shooting defendant'turned and ran ; Di Scibio .picked up a stone and threw it .at him-; proceeded for a distance of sixty.or" seventy feet, fell on a pile of .straw and died. -Two witnesses, G-agliardi and a brother of the deceased, testified that the defendant discharged his revolver-when Di Scibio was from four to six feet distant and G-agliardi also testified that before, doing so or at about the -time of doing .so he: culled to' Di Serbio to step, back or he would shoot-.
The defendant’s version was that, tlie deceased seized and struck . him;- tliat he then.drew the revolver to frighten'Di Scibio; that the latter pulled the revolver out of defendant’s hands and that in ■' the'eh counter it was accidentally discharged: One witness-called for the defendant testified' that as- the .deceased approached defendant tlie latter called to him four times to step back, and did not take the revolver from his pocket until after he had beén seized by tire ■ deceased.' Another witness who' was within- the. store heav'd defendant say four times, “ Ralph, stand hack,” and- then heard the -report _ of the revolver, but .did not'see what occurred.. That is -substantially all the evidence as' to" thé horiiicide: .
Defendant made his escape and was arrested about ten miles from the scene of the homicide. - If, as he says, tlie shooting was accidental lie must have fled without knowing, tlie'. fatal character of the wound and without in fact knowing that the shot had in -any way taken éffSet;-.inasmuch'as-there-was no external bleeding-or anything to ■ indicate to him that" Di Scibio had' been even slightly wounded.. He: admitted that the- deceased was- a;larger man than .himself; that he knew him to have a violent disposition; that lie had seen -him' . assault different-individuals;. that he was' afraid of him; liesaw him. approach, threatening- violence, but with nothing in his hands with which to.'execute such threat ;, lie'might have-tiirned and fled'with-: out either receiving or inflicting ;an injury; nevertheless he made' effort to do so, but stood- his ground- until the revolver was. discharged and then mádé his' escape.
On this" evidence the jury were -justified, in finding .that the defendant-designed.to effect-the death of Di Scibio, and-that such homicide was not a justifiable'-act-of self-defense. Indeed, defend*721ant does not claim that he committed the deed in self-defense, but that the shooting was accidental. The jury, on sufficient evidence, found otherwise.
¡Numerous criticisms are made of the charge of the learned trial justice. The charge was an eminently fair one, fully and completely safeguarding and protecting the defendant in all of his rights, and no error is discoverable therein.
About á year after the judgment herein a motion was made on affidavits for a. new trial on the ground of newly-discovered evidence. The motion was adjourned from time to time, and an order denying such motion was finally made December 24, 1906, more than two years after the judgment and more than one.year after the appeal had been taken. Defendant seeks on appeal from the judgment to review such order.
A motion for a new trial in a criminal case can only be granted in accordance with sections 463 and 465 of the Code of Criminal Procedure. Subdivision 7 of said section 465 provides for a' new trial “ when it is made to appear by affidavit that upon another trial the defendant can produce evidence such as if before received would probably have changed the verdict; if such evidence has been disco veréd since the trial, is. not cumulative; and the failure to produce it on the trial was not owing to 'want of diligence.” Many of the authorities cited by the appellant are without application because they were civil actions dn which such motions are not restricted by statutory provisions.
The defendant on- such motion produced the affidavits of two wit- . nesses who claimed' to have seen the homicide. This alleged newly-discovered evidence would tend to show that a physical encounter took place between Di Scibio and the defendant, and that the revolver was discharged during such encounter, but it also corroborates the contention of the prosecution that defendant drew the revolver before such encounter. I do not think that the failure to produce this evidence at the trial is satisfactorily explained. These new witnesses lodged with defendant at the shanty of Di Scibio. Each says that at the time of the tragedy he stood within a few feet of defendant. One was in his company on the preceding evening when he had his first controversy with Di Scibio over the indebtedness. *722Defendant knew, or with the exercise of proper diligence could have ascertained, every individual engaged in the work of the highway'eon-. struction. ■ No one in his behalf sought any interview with these two witnésses, although such interview could have been had. The failure to do so, I think, was a lack of such diligence as is required by the statute. And in any'event such evidence is clearly cumulative and cannot be made the basis of a new trial under the Code provision above cited.
About all that is left of the motion is an attack on the credibility of the witness Gagliardi on the ground that since the trial he has admitted that his testimony was untrue. The affidavits .to prove such-admission were made and submitted in January^ 1906, at an adjourned hearing of the motion, and more than a year after the judgment, and it is doubtful whether they are entitled to any consideration under section 466 of the Code of Criminal Procedure which requires such a motion to be made within one year after judgment. This admission of Gagliardi seems to have been, made - iii a saloon conversation September 1, 1905, nearly a year after the trial: Defendant’s father claims to have heard the statement, but no affidavit to that effect was presented when the affidavits on which the motion was made were presented to the court in November, 1905.. This contention seems to have been an afterthought. It also appears that the saloonkeeper who was one of the persons who claimed to- have heard the admission was also present at the homicide and at the time of making his affidavit was suffering incarcera-t-ion for intoxication and disorderly conduct. He was orally examined on the motion and distinctly contradicted defendant’s testimony in that he said Di Scibio was six or seven feet from defendant when he saw the’ revolver in the hand of the latter. I am not deeply impressed with the environment from which this so:called admission of Gagliardi as .to the untruthfulness of his .testimony proceeds. But the defendant produced on the motion an affidavit of Gagliárdi, and comparison of such affidavit with the testimony givén by him at the trial does not reveal any contradiction as to any material fact. In his affidavit he makes it appear that Di Scibio had his hands On defendant and that defendant pulled himself away. He did not at the trial say that Di Scibio did not grapple with defendant. ■' The important, point of his testimony- was that defendant discharged his *723revolver when. Di Scibio was from four, to six feet distant and he in no way .contradicts that in his subsequent affidavit. • There may indeed have been a physical encounter. That is unimportant if it took place after the shooting of Di Scibio. As some of the witnesses say, the occurrence took place within a very short space of time and notwithstanding the fatal character of the wound Di Scibio, after receiving the same, may have grappled with defendant, because all of the witnesses including tbe defendant say that after the discharge of the revolver Di Scibio threw a stone at the defendant and it is conclusively established that he proceeded sixty or seventy feet before he fell. G-agliardi was not asked at the trial-and did not testify concerning a physical encounter. He gave his testimony through an interpreter and this feature of the case may have been accidentally omitted. It was not important from the standpoint of the prosecution. His subsequent affidavit merely establishes the unimportant fact of a physical encounter at some time without militating against his former testimony that the shooting occurred while- the two men were at a distance from .each other. Had lie testified to this additional fact at the trial there is not the slightest probability that such additional evidence would, have changed the verdict.
The judgment should be affirmed.
Judgment of conviction and order unanimously affirmed.