dissenting. I find myself compelled, most reluctantly, to dissent from the conclusion reached by the majority of the court in this case. There are many considerations which induce me to regret that I cannot agree with my brethren, for whose judgment, learning, and ability I entertain such high respect. Some of these considerations it will be needless to state, while others it would be, perhaps, improper even to allude to in a judicial opinion, and I shall, therefore, confine myself simply to a statement, in brief form, of the reasons why I am unable to concur in the view taken by the majority of the court.
This court, not having been invested by the Constitution *419with jurisdiction to consider or determine any question of fact in a case like this, cannot undertake, and has never undertaken, to decide whether a person who has been convicted of any offence is or is not entitled to a new trial upon the ground of after discovered evidence, for the reason that such a decision necessarily involves the decision of questions of fact. Hence, as far as this court has ever gone is to suspend the appeal, by which the Circuit Court has lost the jurisdiction of the case, and to permit a motion for a new trial, upon the ground indicated, to be made to the Circuit Court, which is invested with jurisdiction to hear and determine questions of fact. But even this will not be done unless aprima fade showing is first made here; and this is required for the purpose of preventing unnecessary delay in the' administration of justice by motions for a new trial based upon frivolous grounds, and so manifestly unfounded as not to show even a prima fade ground for a new trial. Hence this court, in considering motions of this kind, has always confined itself strictly to the question whether a prima fade showing has been made, and has invariably declined to express any opinion as to the suffidency of the showing, leaving that matter entirely to the Circuit Court, which alone has jurisdiction to decide it; and in some-cases this court has expressly said that the court below, in deciding that question, was not to be influenced by the fact that this court had granted the appellant permission to make such motion.
It seems to me, therefore, that the only question is, whether the appellant has made such a prima fade showing as would warrant this court in suspending the determination of the case until the appellant can have an opportunity of making his application to the Circuit Court for a new trial upon the ground of after discovered evidence. Without going into any discussion of the facts disclosed by the affidavits submitted upon the hearing of this motion, which, under the circumstances, would certainly be unnecessary, if not improper, I feel bound to say that a prima fade showing was made; but whether sufficient to require the granting of a new trial is a wholly different question, upon which I do not feel at liberty to express, or even *420indicate, any opinion. That is a matter solely for the consideration of the Circuit Court, which, no doubt, would give it all proper consideration, and would pay due regard to the wise caution found in State v. Hardin, 2 Bay, 268.
Motion refused.