dissenting as to the defendant Stanton. I concur in the judgment as to defendant Reardon. I dissent from the opinion and judgment as to defendant Stanton. I think that Stanton should be granted a new trial on the ground of newly discovered evidence.
The majority bases its ruling as to this ground of the motion on the fact that the newly discovered evidence is cumulative of his evidence as to alibi on the trial.
It seems to me that our courts sometimes, in fact too often, fail to comprehend the true meaning of the expression “not merely cumulative.” This court, speaking through Justice Jenkins, in Johnson v. State, 196 Ga. 806 (2) (27 SE2d 749), said: “It is only when newly discovered .evidence either relates to a particular material issue concerning which no witness has previously testified, or is of a. higher and different grade, from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence, and afford a basis for a new trial.” The newly discovered evidence in this case meets the above test. In the first place, the newly *236discovered evidence is direct evidence. If it should be believed, an inference from ordinary alibi evidence is not necessary to show that this defendant was not present at the place of the crime.. In the second place, in Fellows v. State, 114 Ga. 233 (39 SE 885), cited by the court in Johnson v. State, supra, the newly discovered evidence was alibi evidence, but it was held not to be merely cumulative for the reason that it placed the defendant at a different place from the other alibi evidence. Thirdly, the newly discovered evidence in this case is not merely cumulative because it not only shows that the defendant was not present at the place where the crime was committed but also shows who the killer was. The witness involved still says that he will not testify, but the court does not base its conclusion on that fact. We should grant a new trial and see whether, under the State’s guarantee of protection, the witness will testify.