The court have given to the case on this appeal, and to the motion to dismiss the appeal their careful consideration, and have reached conclusions that will now be indicated.
As to the appealability of the order a majority of the court are of opinion that no appeal lies in such a case. Section 517 of the Code of Criminal Procedure declares in what cases appeals may be taken by the defendant in criminal cases. It is-in these words: “ An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll as prescribed by section 485 may be reviewed.” Section 485 makes provision for the inclusion in the judgment roll which may be brought up by the appeal under section 517, of “ a copy of the minutes of any proceedings upon a motion either for a • new trial or in arrest of judgment.”
. Provision is therefore made for the revision of motions of this character when they are embraced in the judgment roll as provided Vy section 485. But we look in vain in the act for any provision for an appeal on a motion for a new trial in any case except in the case and form presented by section 517. At common law no appeals could be brought from judgment orders or interlocutory proceedings in criminal cases. The right of appeal in such oases is purely statutory; but in cases where there is no statutory provision, the right of appeal does not exist. The code has made no statutory provision for an appeal from an order denying a motion for a new trial in any case where the motion is made after final judgment in the action, unless the findings and order be embodied in the judgment roll. It has, however, by. the provisions of the act of 1882, now section 517 of the Code, granted to the convicted party an opportunity to make a motion in the trial court in capital cases, or when the application cannot be made to the trial court prior to the execution of the sentence, by application to a justice of *332the Supremo Court or a Special Term thereof. But while it has given this new privilege to a party convicted of a capital crime, where sentence of death has been pronounced, the legislature has not seen, fit to superadd the right of appeal by any statutory provision. It has only granted an additional privilege to the convicted party which terminated with the application to the court or judge before whom the motion is made. A majority of the court have come to the conclusion that this is the correct view of the statutory provisions and of the law in respect of the right of appeal in such cases.
But notwithstanding the views of the majority of the court, and especially because one of the judges entertains a different opinion, and because the case is a capital one, involving the life of the defendant, we have concluded that it is our better course to consider the appeal and dispose of it on its merits without finally determining the question whether or not^ an appeal li.es.
The provision of the act of 1882 (now section 466 of the Code of Criminal Procedure) allows in capital cases at any time before the sentence is executed, an application to be made to the court before which the trial was had, or if that court be not in session, to any justice of the Supreme Court or any Special Term thereof for a new trial upon several grounds. These grounds are enumerated by section 465. They are seven in number, upon all or either of which a motion of this character can be made under section 466. But when the motion is founded upon the seventh subdivision of section 465 the Code expressly prescribes what must appear as sufficient grounds for granting a new trial.
That section is in these words : “ When it is made to appear by affidavit that upon another trial the defendant can produce evidence such as if received would probably have changed the verdict, if such evidence has been discovered since the trial, is not cumulative, and the failure to produce which on the trial was not owing to want of diligence.”
On such a motion the court or judge is to act not only upon the affidavit presented, but also of course upon the testimony and proceedings had and taken upon the trial at which the conviction occurred; and it must be considered whether the *333evidence claimed to be newly discovered if it had been given upon the former trial would probably have changed the verdict.
How if we take the case the prisoner made for himself and assume that his testimony would have been the same if this new evidence had also been produced, we can hardly conceive it possible for the jury to have rendered any other verdict, because liis own evidence and the manner in which he detailed the act which constituted the homicide and the manner in which he states what he did on that day and what he said, and the effect of his version of the transaction, would be in direct conflict with all that is sought to be added upon the new trial. If the new evidence had been given in the case, the jury would have been driven to the necessity of rejecting his own account of the affair in order to give him the benefit of the new evidence now sought to be introduced.- So that we are not able to come to any conclusion different from that reached by the justice at Special Term upon the question whether it would probably have changed the verdict.
But if we had reached a different conclusion we must then be satisfied that the evidence has been discovered since the trial within the meaning of the law. That it existed before the trial is indisputable. Has it been discovered since the trial within the meaning of the law ?
We must assume that the prisoner, on the former trial, knew that he had been arrested ten days previous to the commission of the crime in a state of intoxication, had been in prison three days and subject to the close confinement described in the affidavit by reason of his conduct, although he may not have known the exact condition physically and mentally in which he then was. All that preceded the crime, therefore, in respect of his condition, so far as relates to the intoxication and the arrest and imprisonment for intoxication, were known to the prisoner. If it was known to him before the trial, it cannot properly be called newly discovered evidence. It was a fact, which it was his duty, if he regarded it as important, to have made known to his counsel and to have had it brought to the attention of the court by summoning witnesses.
What occurred after the commission of the crime and his arrest as detailed by the affidavit of the prison doctor is also not *334newly discovered. It is not the development of some unknown fact, but of facts which had previously existed, and must well have been known to the accused. If he were under the treatment of the medical man who makes the affidavit is there any question blit that that fact was within his knowledge ? The only thing newly discovered is the fact that it might have been of some importance to himself if it had been produced. That is not what the law contemplated when a party seeks a new trial upon this ground.
But again, it must appear not to be cumulative. The fact that it is not cumulative must be shown affirmatively. In this case it appeared by the testimony of several of the witnesses, and to some extent by the testimony of the defendant himself, that he had been drinking for some days'before the commission of the crime, and that he was intoxicated at the time of its commission. The subject therefore of'his condition by reason of the use of intoxicating drinks was one circumstance presented by the testimony for the consideration of the jury. It would be cumulative evidence in the meaning of the law to give additional proof of his intoxication and of its effect prior to the commission of the crime, by producing the witnesses who could testify to those facts. There is, therefore, no doubt that the learned court was correct in holding that if this evidence was produced it would be cumulative in.its character. We do not lose sight of the fact insisted upon by the learned counsel that the evidence goes so far as not merely to show habits of intoxication, but also that the prisoner had by the use of sedatives as well as of intoxicating liquors produced a diseased condition of the mind which he was incapable of controlling. That evidence, however, would of necessity, have been required to be sufficient to convince the jury that his mind was in such a condition as to be incapable of forming a deliberation and premeditation required to constitute murder in the first degree. But evidence upon that question was of necessity before the jury. The whole case, as a matter of course, involved the condition and mental operations of the accused party at the time of the commission of the crime, In such cases that question is one of primary importance. If, therefore, any evidence is produced on the trial to establish that the mental condition of the party was such *335that he did not or could not form the deliberation required by the statute, all that has a tendency to make that more potent in its influence on the minds of the jury is cumulative. So ihat if any accused party relies for the purpose of proving the' character of the crime, upon the condition of his mind at the time of doing the act, he must proceed to establish that condition by the production of all evidence bearing upon that question, within his knowledge or which he could have procured by proper diligence. In this case the prisoner went into that evidence to a certain extent. He brought before the jury the proof of the fact that he had been drinking and was intoxicated to some degree on that morning ; and accompanied that evidence with his statement, clear, coherent, and as it appears from the record if credited by the jury, justifying a verdict of minor character, because of the alleged accidental nature of the act which caused the death. All the evidence that is offered here relative to his condition is in our opinion cumulative within the sense of the law.
In addition, however, to the things already noticed, the section requires it to appear that the failure to produce it on the trial was not owing to want of diligence.
It is perfectly obvious, as we think, that the failure to produce this evidence upon the trial was owing to want of diligence. We do not mean to impute wnnt of diligence in any sense of neglect of duty, to the counsel employed. They have at no time been lacking in diligence in doing their whole duty toward this prisoner, and the motion now pending is in itself strong evidence not only of diligence but of extreme diligence in favor of this unhappy man. But what the law means by lack of diligence is the omission on the part of the accused to disclose the facts to his counsel, so as to enable him to judge whether matters of any kind are within his knowledge would be important to him on the trial. Diligence on his part would have disclosed the fact of his arrest ten days before for intoxication, his confinement in prison and the treatment he was subjected to, and that that indicated the condition of mind as now claimed.
So also, as it seems to us, very slight diligence on his part would have disclosed his illness in, prison and the attendance he received from the doctor; and a single question to the doctor *336would have developed the facts as to the condition of the prisoner’s mind for a week previous to the commission of the crime, judging by his condition as the doctor’s affidavit states it, several days after his imprisonment for the crime.
On none of these several requirements of the seventh subdivision of section 455 of the Code does the affidavit come up to what the law demands.
The result is that this court is of opinion on the merits that the decision of Mr. Justice Donohue at Special Term was in all respects entirely correct ; and that it is our duty to affirm the order without dismissing the appeal because the order was not appealable as we might do under the opinion of the majority of the court.
The order of the Special Term must therefore be affirmed.
Present, Davis, P. J., Beady and Cullen, JJ.