*46 By the Cov/rt
Emmett, C.' J.This is a direct application to this Court for a new trial, under the provisions of section 6, p. 777-8 of the Compiled Statutes.
■ We cannot but regret that application was not first made to the Judge before whom the indictment was tried, as from the nature of things he must be better able to decide many of the questions upon which a new trial may depend, particularly such as relate to the weight or credibility of the testimony of witnesses examined in his presence. But the statute referred to undoubtedly gives the Defendant in a criminal action the right, after conviction, to apply to this Court, in the first instance, at any time within a year ; and at the same time authorizes us, in addition to the causes for which a new trial may by law be granted, to take into consideration the question whether, upon the whole case, justice has been done.
In this case the Defendant was indicted and found guilty of perjury in swearing to an affidavit for a continuance, in an action then pending before a Justice of the Peace, wherein he was a party. Several reasons are urged why a new trial should be granted; but we do not think it necessary to consider more than one.
The main defence relied upon at the trial was the insanity of the Defendant at the time of making the affidavit, upon which the perjury was assigned; and it is insisted that this defence was fully made out by the. evidence.
Upon this question the testimony was so overwhelming in favor of the defence that we cannot think that justice was done the Defendant by the verdict of guilty ; and we find it very difficult to account for the conviction upon any other theory than that the jury were influenced by passion or prejudice.
The space appropriated to a judicial opinion will not enable us to give a detailed statement of the testimony bearing oil this defence, nor would such statement be important to any but the parties interested in this particular action. Suffice it that, from the evidence produced on the trial, and which is embodied in the record, we have not the slightest doubt of the Defendant’s insanity, and must thei’efore grant a new trial.