This case is before us upon exceptions claimed
to an order denying a motion for new trial. The motion is in these words:
"Now come both defendants in the above entitled case and jointly and severally move for a new trial therein by reason of the facts set out in the affidavits of William G. *135Thompson, Amleto Fabbri, Nicola Sacco, and James F. Weeks, filed herewith, and in further affidavits to be filed in support of this motion; and because it appears from the confession of Medeiros annexed to the affidavits filed herewith that these defendants did not commit the murder for which they have been tried and convicted, but that said murder was committed by said Medeiros and his associates, as stated by him.”
It is, in substance, a motion for new trial by reason of newly discovered evidence. The affidavits disclose that one Medeiros has confessed that he took part in the crime of which the defendants have been found guilty and that they did not; and set out numerous statements as of fact which it is contended so substantiate the story of Medeiros that in fairness to the defendants a new trial should be granted in order that their innocence may be made to appear. They contain, also, allegations, as of fact, from which it is argued that a conspiracy to secure either the conviction of the defendants of murder as charged by the indictment, or proof that they are dangerous radicals subject to deportation or punishment under the laws of the United States, between the department of justice of the United States and the prosecuting officers of the Southeastern District of Massachusetts, is shown to have existed which rendered their trial grossly unfair. They contain, further, allegations, as of fact, which it is contended establish that there was such suppression by the district attorney of important identification testimony, and such use of unreliable witnesses of identification, that a miscarriage of justice resulted.
The defendants were found guilty on July 14, 1921. The confession was made November 18, 1925. The dates of the disclosures in regard to the alleged conspiracy and the alleged suppression and misuse of evidence, do not appear. This motion for new trial was filed May 26, 1926.
In November, 1925, Medeiros was awaiting the determination of exceptions claimed by him at a trial in which he was convicted of murder in the first degree. The presentation of the motion for new trial was delayed so that, if he secured a second trial, Medeiros might not be prejudiced by knowl*136edge that he asserted participation in another murder. He has been again convicted, and was under sentence of death when the motion was heard. No claim is made that the delay was wrongful.
The judge who presided at the trial and who heard the motion has decided that no reliance can be placed upon the alleged confession; that its truth is not substantiated by other affidavits; that the allegations of conspiracy to convict, of improper suppression of evidence and of improper use of unreliable witnesses, are not made out. These decisions are of matters of fact. Upon them the judge’s findings are final. Commonwealth v. Sacco, 255 Mass. 369. Commonwealth v. Dascalakis, 246 Mass. 12, 32.
The granting or the denial of a motion for a new trial rests in the judicial discretion of the trial judge. Commonwealth v. Devereaux, 257 Mass. 391, and cases cited; and his decision will not be disturbed unless it is vitiated by errors of law, or abuse of discretion. Berggren v. Mutual Life Ins. Co. 231 Mass. 173, 176.
• The defendants contend that there are errors of law, and that the judge, in denying their motion, has abused his judicial discretion and demonstrated prejudice.
The law in regard to motions for new trial based upon newly discovered evidence is fully and accurately stated in Davis v. Boston Elevated Railway, 235 Mass. 482. Further discussion is unnecessary. The principles therein stated are controlling. We shall deal with the defendants’ contentions in the order of presentation in their brief.
1. Before the arguments in the motion were made, the defendants filed eight requests for rulings of law and, about ten days later, they sent to the judge a ninth request to which the district attorney objected because it was filed too late. On October 23, 1926, the clerk received and filed two documents: One, entitled “Decision,” in which was set forth at great length a discussion of the evidence and of the case, the reasons leading to the conclusion, and a denial of the motion; the other, entitled “Rulings of the Court on Defendants’ Requests for Rulings,” in which was stated the action taken on the requests. The first bore the signature *137of the judge; the second bore no signature. On October 25, the defendants filed claims of exception which treated all the requests as denied; and on October 28, filed a bill of exceptions. Because it was unsigned, the clerk refused to show or to give a copy of the second paper to counsel, and none was received by counsel until October 29. On November 1, the judge signed the paper and counsel was so notified on the next day. It is now contended that all the requests must, therefore, be treated as denied. The contention is without merit. Even if the paper should not properly be treated as, in fact, authenticated by the signature upon the document which it accompanied and to which it was clearly related, it became a duly authenticated record of the judge’s action when he affixed his signature. The right to complete the record was not taken away by the claim that the requests had been denied and the filing of the bill of exceptions. See Commonwealth v. Carney, 153 Mass. 444. There had been no failure to pass upon the requests. The “Decision” shows that, in fact, the judge had regarded himself as giving requests 3, 4, -5 and 6, . and as denying 1, 2, 7 and 8, while refusing to accept request 9, unless, as matter of law, he was bound to receive it, and, in that event, denying it. The defendants have not been injured. They have had the benefit of the rulings to which the judge thought them entitled, and they have their exceptions to the rulings denied or rejected.
2. Requests 3, 4, 5 and 6 were not denied but were given. Request 7 is waived on the briefs. Request 8 goes beyond a logical extension of the principles laid down in Davis v. Boston Elevated Railway, supra. That case declares, page 496: “ . . . it is not imperative that a new trial be granted even though the evidence is newly discovered, and, if presented to a jury, would justify a different verdict.” There was no error in refusing to give the eighth request. The rule is the same even though the case is capital. Commonwealth v. Devereaux, supra. Commonwealth v. Madeiros, 257 Mass. 1.
3. The exceptions grounded upon what the defendants describe as “rulings of law” in the course of the discussion *138contained in the paper denominated the “Decision,” cannot be sustained. As was illustrated in Davis v. Boston Elevated Railway, supra, there may be actual errors of law in a written statement accompanying and explaining the order denying a motion for new trial, yet if grounds valid in law upon which the decision can be sustained are stated as the basis of the decision, it must stand.
The statement that “the Weeks affidavit and those of Mr. and Mrs. Monterio are not affirmative evidence of the fact that Medeiros was connected with the South Braintree murder because these affidavits are purely hearsay” is rather a statement of a mental process involved in their consideration than a ruling of law. Neither affiant claims any knowledge of the happenings at South Braintree other than such as was gained from what they say Medeiros told them. The evidence from their affidavits in regard to those happenings is pure hearsay. It may be admissible for the consideration of the judge, because no objection was made at the hearings; and it might be admissible at a trial to show that the confession of November 18 was not a recent invention or in corroboration or contradiction of Medeiros if he took the stand. What they say of the Morellis, their crimes and associates, and of the behavior and statement of Medeiros at other times, has its bearing upon the question of a new trial and appears to have been considered by the judge. Nevertheless the evidence was hearsay, as the judge states, on the point which he was considering. The statement is not an error of law which will found a good exception.
The contention that the judge has confused “material allegations set forth in the motion” with “the issues presented by the motion,” and was in error in the statement that “In seeking to set aside the verdict of the jury on the ground of newly discovered evidence (and this motion comes within that class), the law places the burden of proof upon the defendants to establish, by a fair preponderance of the evidence, the truth of the material allegations set forth in the motion,” is fully met by considering the sentence which follows: “And one of the most important factors in determining these motions is the credibility of those who furnished *139the newly discovered evidence.” Upon this issue the burden is clearly upon the defendants. Commonwealth v. Sacco, supra, at page 448. Commonwealth v. Jordan, 207 Mass. 259, 275.
There is nothing in the further contention of error in the statement, “As far as this court is concerned, the only question involved is, whether or not the verdicts of the jury, that have been affirmed by the Supreme Judicial Court of this Commonwealth, should be set aside on the confession of Medeiros. In other words, this court must find that the defendants have established, by a fair preponderance of the evidence, the truthfulness of the Medeiros confession.”
The “Decision” makes manifest that the judge is here dealing with one part of the issues involved in the motion, that he gave the defendants’ third request for instructions, and that he did not regard his determination upon the truthfulness of the Medeiros confession as decisive of all the issues presented by the motion.
4. We need not deal with the contention of the defendants that if they are entitled to a rehearing this court should order hearing before another judge.
5. The defendants contend that the judge should have given their second and ninth requests and that the refusal to grant a new trial is clearly an abuse of discretion amounting to denial of due process of law.
The judge had authority in his discretion to refuse to accept a request presented for the first time after the arguments were finished. Commonwealth v. Hassan, 235 Mass. 26, decides that the rule of practice applicable in civil actions prevails also in criminal cases. Compare Common Law Rule 44 of the Superior Court (1923). No valid exception lies to the refusal to accept request 9. Moreover, the ruling, made in the event that he should have exercised his discretion to accept it, was right. As will appear, we find no abuse of discretion.
The arguments which have been addressed to us illustrate the force of the intimation repeated in Davis v. Boston Elevated Railway, supra, at page 494, that a practice to embody the order denying a new trial in a paper like the *140“Decision” here filed “should not be encouraged, for its inevitable result would be to put on trial the magistrate instead of the case.”
The judge in acting upon a motion for new trial has the right to use and to rely upon his own knowledge of what took place at the trial before him. Commonwealth v. Devereaux, supra. Commonwealth v. Dascalakis, supra. Berggren v. Mutual Life Ins. Co., supra. Commonwealth v. Madeiros, supra. No agreement of counsel upon the truth of occurrences at the trial is binding upon him if not in accord with his knowledge. His conscientious exercise of his duty cannot be restrained by agreements of counsel not assented to by him. A refusal to be so bound is not of itself abuse of discretion nor proof of prejudice. His signature to a bill of exceptions — in which the agreement is set out in order that a full and true account of what has taken place may be presented for review ■ — ■ is not an assent.
The contention that there was error or abuse of discretion in the use by the judge of his own knowledge of the case, in addition to the evidence and agreements placed before him by counsel, cannot be sustained.
We have considered carefully the helpful and minute discussion contained in the brief and the argument for the defendants. We have studied the numerous affidavits, exhibits and records placed before us and the statements of the “Decision” in the light of all the arguments of counsel for defendants. It is not necessary to discuss them in detail. As already stated, it is not for us to determine what is to be believed. The question for us is: Could the judge conscientiously, intelligently and honestly have reached the result he has reached? As stated in Davis v. Boston Elevated Railway, supra, at page 502, “To sustain these exceptions it is necessary to decide that no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.”
The confession of Medeiros, by itself, would not be admissible upon a trial of the defendants. Commonwealth v. Wakelin, 230 Mass. 567, 576, (citing Commonwealth v. Chabbock, 1 Mass. 144, Commonwealth v. Felch, 132 Mass. 22, and *141Donnelly v. United States, 228 U. S. 243, 273, 274, which support it) points out that at a trial for crime a confession made out of court by a third party is not admissible. An impartial, intelligent and honest judge would be justified in finding that the confession gains no persuasive force from the credibility of Medeiros; that the facts relied upon by the defendants in confirmation, if true, go no further than to furnish basis for a contention that he and some members of the Morelli gang of criminals took part in the murder at South Braintree, but fall far short of furnishing adequate proofs of their guilt or of establishing reasonable doubt of the guilt of the defendants.
He would be compelled to find that no substantial evidence appeared that the department of justice of the United States had in its control any proof of the innocence of these defendants, or had conspired to secure their conviction by wrongful means. The belief of investigators in the defendants’ innocence is not evidence which can be submitted to a jury, and would not excuse failure on their part to furnish damaging evidence if they possessed it.
He well might refuse to believe on this evidence that the prosecuting officers of the Southeastern District sought a conviction when they had in their control evidence which strongly tended to establish innocence. A prosecuting officer is violating no canon of legal ethics in presenting evidence which tends to show guilt, while failing to call witnesses, in whom he has no confidence, whose testimony contradicts what he is trying to prove. Nothing which he was in duty bound to disclose is shown to have been concealed by him.
This court has already upheld the legality of the cross-examination of the defendants, Commonwealth v. Sacco, supra, at pages 438, 439, and disposed of the incident of Proctor’s examination, pages 452-457.
Placing spies in cells adjoining that of an accused person or within his family, is not an illegal method of obtaining evidence.
The weight to be given to the evidence of alleged resemblance, as shown by photographs, between Joseph Morelli and *142defendant Sacco, and between Stephen Benkosky and the chauffeur described by the witnesses Kelley and Kennedy was for the trial judge; nor was he bound to find unfairness in the presentation of the evidence in regard to the identification of persons seen taking part in the murder.
The changes of statute law which have substituted a single judge of the Superior Court for the larger number of judges formerly required to preside over capital trials* have not modified the law governing the duty, the authority, or the exercise of discretion of the presiding magistrate.
There is no error of law or abuse of discretion in the denial of the motion; which, in substance, is a finding that the evidence submitted was not “weighty and of such nature as to its credibility, potency and pertinaney to the fundamental issues in the case as to be worthy of careful consideration,” or “so grave, material, and relevant a character as to afford a probability that it would be a real factor with the jury in reaching a decision,” and that a new trial is not necessary to prevent a failure of justice. Davis v. Boston Elevated Railway, supra.
Exceptions overruled.
See as to the prosecution for capital crimes, Rev. Sts. c. 81, §§ 3, 11,15-17,19; c. 136, §§ 21, 22; Gen. Sts. c. 112, §§ 2, 5, 8, 9; Pub. Sts. c. 150, §§ 2, 5; c. 213, §§ 28-30; St. 1891, c. 379; St. 1894, c. 204; R. L. c. 157, §§7,8; St. 1910, 555, § 3. Reporter.