In view of the grave interest involved in this case, we have examined the facts presented in the papers on which the application for a new trial was made, without considering or passing upon the question whether an appeal lies to this court, from an order denying a motion for a new trial, in a criminal case, made after conviction and judgment, on the ground of newly discovered evidence.
The newly discovered evidence is in substance, set forth in the affidavit of the physician who saw the prisoner on the day following the homicide at the prison. The physician, in substance, states at that time the prisoner was oblivious of what had occurred for a week before. ,He further states that he ascertained that the prisoner was accustomed' to the use of opiates and sedatives of various kinds. This evidence is only material as it bears upon the criminal responsibility of the prisoner at the time of the homicide; but it is apparent that its bearing upon the point, to say the most, is quite remote. The want of consciousness of the prisoner, on the morning after the homicide, of his acts for a week before, may be quite consistent with the possession of his faculties at the time. It does not appear that he was not, when the examination was made, under the immediate influence of drugs, taken after the homicide ; that his condition observed by the physician was not attributable to that cause.
The facts found on the trial tend to show that the homicide was the willful, conscious, and deliberate act of the prisoner. The prisoner was sworn on the trial, and while professing to recollect the whole occurrence, attributed the homicide to acci*479dent. It is not proposed to show, by any acquaintance of the prisoner, that before, the homicide he was not in possession of his reason and accountable for his acts. It may be inferred that he was accustomed, to some extent, to the use of intoxicating drink, but nothing was proved on that trial from which a just inference could be drawn at that the time of the homicide liis power of will or deliberation was affected or weakened by this cause.
It is doubtless true that no adequate motive for the homicide was shown, but this is by no means an unusual fact in criminal cases.
The General Term has carefully considered the case, and we are constrained to concur in the conclusion reached, that a case is not made for the intervention of the court in granting a new trial.
The order affirming the order denying the motion is affirmed.