I can not concur in a judgment of affirmance in this case. The record discloses the commission of one of the most atrocious crimes known to law. The fact that the crime was committed can not be doubted. The sole question at the trial was as to the identity of the perpetrator. Upon this question the prosecutrix testified that she could identify the accused as her assailant. Upon the question of identity all persons, even the most conscientious and scrupulous individuals, are sometimes mistaken. The accused stated that he was not at the scene of the crime, but was at home, a mile and a half distant, the entire day. The negro *111woman with, whom he lived testified to the same effect. The testimony of- the negro woman was impeached by proof of contradictory statements. The jury was at liberty to disbelieve the accused as well as his witness. If the case stood alone upon the record, as it discloses what occurred at the trial, I would have no difficulty in ■concurring in the affirmance of the judgment, the credibility of the witnesses and" of the accused being in the first instance a matter for determination by the jury, and in the second instance by the trial judge upon the motion for a new trial. I do not think any error ■of law was committed which required the granting of a new trial, so far as the rulings at the trial which were complained of are ■concerned. It is that ground of the motion which relates to the newly-discovered evidence which constrains me to decline to concur with a majority of the court in the affirmance of this judgment. The sole question for determination in this case is, was the accused at the place where the crime was committed? If he was, he was the perpetrator. If he was not, he is an innocent man.
According to the testimony the accused left his home a few minutes after six o’clock on the morning that the crime was committed, ■and the crime was committed one mile and a half from his home, about half past six o’clock. According to the testimony of the newly-discovered witness, the accused went to work at the stables of the express company, in the city of Atlanta, at seven o’clock ■on that morning. The record does not disclose the exact distance from the scene of the crime to the point at which the accused went to work, according to the testimony of this witness. It is evident from the record, however, that it was not less than one mile and three quarters nor more than two miles and a half. If the witnesses whose testimony refers to matters of time^were all réferring to standard time, then it is clear, from the record, that if the .accused went to work at the express company’s stables at seven ■o’clock he was there within twenty minutes after the crime was ■cgmmitted. If the newly-discovered witness is referring to standard time, as evidently he is, and the prosecutrix was referring to -sun time, then the time between the commission of the crime and the time that the accused reached the stables of the express company would be about forty-five minutes. It is more than probable that all of the witnesses were referring to standard time; for, while the prosecutrix did not live in the city of Atlanta, the farm upon *112which she and her husband lived was in the immediate suburbs. It is highly improbable that the witnesses were referring to different methods of computing the time of day. The newly-discovered witness swears positively that the accused was one of a number of hands who worked for him. He also swears that it was his duty to keep a record of the time that each one of the hands went to work, and that he-did keep such a record, the same being made contemporaneously with the work of the day. The time book of the 15th day of August is produced by him, .and it appears therefrom that the accused reported for work at seven o’clock in the morning at the express company’s stables. The character of this witness, who is a white man, is vouched for by a number of witnesses, who, from the designation of their occupations and business, are evidently men of standing and integrity in the communities in which they live. There is absolutely nothing to indicate any reason why this witness should commit the offense of perjury, as well as forge an instrument in writing, for the purpose of aiding the accused in his efforts to obtain a new trial. It is possible — but the barest possibility — -that the accused might have been the perpetrator of the crime at the time fixed by the prosecutrix, and then have reached the stables of the express company at seven o’clock. It is, however,, beyond all human probability, under the circumstances of the ease. The accused, by running, or by walking at an extraordinarily fast gait, might have made the distance required; but it is to be kept in mind that the way from the scene of the crime to the place where the witness says he went to work is, for a part of the way, and probably the greater part, through the streets of the city of Atlanta and its suburbs, and a person passing at that hour in the morning at the unusual gait which would have been required would have been more than apt to attract attention of more than one person, even if it is reasonable to presume that a negro, having committed the atrocious crime involved in this case, would rush-right into the center of a large and populous city and quietly take up his daily work within less than an hour after the crime was committed. If the testimony of the newly-discovered witness is to be credited, the jury would be authorized, even if not required, under all of the circumstances of the case, to find that the accused was not the perpetrator of the crime. But even if it is not true that' such a verdict would be so authorized or re*113quirecl, such testimony, coming from the mouth of a credible witness, raises the gravest doubts as to the guilt of the accused.
It is said, though, that the accused made a false statement at the trial as to where he was on that day. Whether this is willfully false or not no one can say. Arrested three months after the crime was committed, the fact that he may have made a mistake as to the date on which he was at home would not render his mistake different from similar mistakes that would be made by other persons under the same conditions. But suppose his statement is false, and suppose tEe testimony of the negro woman who corroborated him is perjured, these facts should not weigh in the balance when grave doubt as to his guilt of the crime charged is brought about by the newly-discovered evidence. He is not to be punished for the false statement at the trial. He is not to be punished for subornation of perjury, if he procured the negro woman to testify in his behalf. He is to be punished for rape, and only after the evidence of his guilt is such as to satisfy the mind of a reasonable man that he is guilty beyond all reasonable doubt. I do not think that counsel for the accused, who were appointed by the court to perform the duty of seeing that he was tried according to law, have been wanting in diligence. The record discloses that they were as diligent as possible under all of the circumstances of the ease. ' Counsel, although appointed by the court, went to work in good faith to see that the accused had a trial according'to law, and they deserve great credit for having performed this onerous, and no doubt unpleasant duty in an honest, conscientious, and diligent way, and not in the perfunctory way in which it is sometimes unfortunately performed in cases of this character.
I am aware of the rule that new trials upon the ground of newly-discovered evidence 'are not favored by the courts. I am also aware of the rule that the discretion of a trial judge, exercised in refusing to grant .a new trial on the ground of newly-discovered evidence, will rarely be controlled. But where the newly-discovered evidence is of a character like that involved in the present case, which not only brings to one’s mind the gravest doubt as to the correctness of the verdict under review, but also raises a probability that a different result might be reached on another trial if the witness is credited by the jury, I think it is my duty, as a Justice of this court, to render a judgment having the effect *114to authorize a new trial to be had, in order that the testimony of the new witness might be laid before another jury in connection with the testimony adduced- at the former trial, and have it determined whether that tribunal authorized by the law to pass upon all these questions shall say that the accused, notwithstanding this evidence, is guilty beyond all reasonable doubt. Human life is involved. The execution of the sentence imposed upon the accused places every one connected with that judgment and its rendition in a position where, if a mistake is made, they are powerless to remedy it. This case is special, peculiar, and exceptional, and I think that the Supreme Court not only has authority to reverse this judgment, but it is its duty to do so. In Matthews v. State, 56 Ga. 469, the headnote was as follows: “The- newly-discovered evidence in this case suggests such a doubt as to whether the prisoner’s offense may not be voluntary manslaughter, instead of murder, that, although not fully convinced that he is entitled to a new trial under the strict rules of law, this court, in the exercise of the discretion confided to it by statute, directs a new trial, in order that the prisoner may have his case examined in the light of the evidence, by a jury, whose province it will be to look at the facts themselves, and not suffer the doubt above indicated to influence their finding, unless a like doubt shall arise in their own minds by reason of the evidence which shall come before them, nor unless it shall moreover seem to them to be a reasonable doubt.” The opinion of Judge Bleckley is in the following language: “There is no error in the record, except as to the newly-discovered evidence. In respect to that, while we are not entirely convinced, we deem it best to treat the ease as special and peculiar, and give it the direction indicated in the headnote. Human life being involved, nwe do not feel-quite warranted in denying a new trial on the state of facts.” In Cooper v. State, 91 Ga. 362, which did not involve a capital offense, a judgment refusing a new trial in a criminal ease was reversed upon reasons similar to those stated in the Matthews case.
This court has power, in a ease of this character, to prevent the taking of human life when there is a doubt as to whether that life has been forfeited under the law* With the greatest respect for the opinion of my brethren who constitute a majority of the court, and the learned and able judge who presided at the trial, I must dissent from an affirmance of -this judgment, for the reason that *115my mind is not at rest, under the light of the newly-discovered evidence, as to whether the accused is guilty beyond a reasonable doubt of the crime of which he was convicted. I am authorized to say that Mr. Justice Atkinson concurs in the views above presented.