(dissenting).
The majority’s disposition recalls to mind an incident which transpired during the tragic depression days in the early 1930’s when bank closings were epidemic throughout the land. The payee of a check which had been returned marked “Insufficient Funds” storméd into the offices of the drawer of the check and indignantly demanded an explanation. The equally outraged drawer thereupon telephoned the bank and demanded an explanation in view of the fact that he had a substantial balance. Came this soothing reply from the bank’s cashier: “Calm yourself, sir, calm yourself, when we returned your check marked ‘insufficient funds’ we did not mean you had insufficient funds; we meant we had insufficient funds.”
And so here I agree with the majority that the instant appeal also presents a *656question of “insufficiency” but part company with it on the score as to who is guilty of the “insufficiency”. The majority takes the view that the “question * * * is whether the showing made by Rutkin on his motion for a new trial is sufficient to require * * * ” its granting.1 I take the view that the single issue for determination is whether Rutkin had been given a “sufficient” hearing by the District Court. On that score I am of the opinion that the record overwhelmingly established that Rut-kin had not been given a “sufficient” hearing and that the District Court acted in abuse of its discretion in failing to give him such a hearing and that accordingly its denial of the motion for a new trial must be reversed with directions to give Rutkin a hearing in accordance with established practices of judicial decorum. In connection with the latter statement I desire to emphasize that the primary reason for my dissent is my grave concern that the affirmance by this Court of the District Court’s denial of Rutkin’s motion for a new trial may be construed as our giving sanction to its patent abuse of legal discretion, although the majority has in fact premised its disposition solely on its view that Frayne’s proffered newly-discovered evidence is cumulative under applicable legal principles. On the latter score I disagree with the majority for the reasons subsequently stated but again I stress that such disagreement is wholly subsidiary to the single paramount issue as to whether the District Court acted in abuse of its discretion.
Indeed the majority’s position is truly an anomalous one since, after noting that “ * * * the court below refused to allow Frayne to give oral testimony or to be examined upon his affidavit”, and further “ * * * the court below heard statements by the Assistant United States Attorney, unsupported by any proof, which tended to challenge Frayne’s veracity”, and stating its conclusion “ * * * that the procedure at the hearing below” was “summary”, it nevertheless proceeded to affirm the District Court’s denial of Rutkin’s motion. (Emphasis supplied.)
It is regrettable that the majority did not set out in further detail what transpired at the hearing on the motion for a new trial. Not only was Tyne, the Assistant United States Attorney, permitted to challenge Frayne’s veracity, but he was also permitted, in extraordinary and unorthodox manner, to castigate Frayne as “a paid informer” and to state that “We presently have Frayne under investigation now for a federal offense” and “This affidavit of Frayne’s is fraught with suspicion.” Further, Tyne was permitted to question one William O’Donald, Special Agent for the Internal Revenue Bureau, who was seated in the court room, with reference to an alleged conversation which he had with Frayne prior to the trial, although O’Donald was not called to the witness stand or sworn. Subsequently the District Court denied application by Rutkin’s counsel for leave to call Frayne and O’Donald to the witness stand and to-examine them with respect to Tyne’s and O’Donald’s statements.
Under the facts as stated I cannot subscribe to the majority’s holding that “upon reading the transcript of the hearing in the court below, we are convinced that the court gave adequate consideration to Rutkin’s motion.”
The majority’s affirmance of the District Court’s denial of Rutkin’s motion for a new trial was premised on its view that Frayne’s proffered after-discovered evidence was “merely cumulative and impeaching and was not of such a character as would probably lead to acquittal at a new trial.”
Inherent in the majority’s expression on this point is its holding that evidence-is to be inexorably classified as “merely cumulative” when it is repetitious of testimony already received.
*657That holding is at variance with well-settled principles which may be stated as follows:
The test whether evidence is cumulative is not whether it tends to establish the same fact, but rather whether it is different in kind, quality or grade.2 New evidence of a higher grade or character should not be classified as merely cumulative.3 Evidence of disinterested witnesses although repetitious of that given by an interested party is evidence of “another character” and “in justice the two classes of testimony should be distinguished, and the defendant should have the benefit of the declarations of disinterested witnesses.” 4 The criterion to be applied is whether the new evidence, notwithstanding its cumulative character, “possesses sufficient probative force to render probable a different result upon a retrial of the case”; if it does, “it will then warrant and require an order granting a new trial.” 5
In applying the principles stated it is imperative to keep in focus (1) the critical issue at the original trial; (2) the source, grade and quality of the testimony there submitted; (3) the quality and grade of Frayne’s newly-discovered evidence and (4) the probable effect of the latter evidence upon a retrial of the case.
The critical issue at the trial was whether Rutkin had been Reinfeld’s partner In the Browne Vintners venture and had received $250,000 as his due share of the profits therein or had “extorted” the $250,000 by threats on Reinfeld’s life.
All the witnesses who testified at the trial as to Rutkin’s status in Browne Vintners were in some degree interested parties. Rutkin, of course, as a party defendant had the greatest interest in the outcome of the litigation. As to the other witnesses; Bennett had been an officer of Browne Vintners; Joseph Da*658vis, a former bootlegger, had been a shareholder and officer in Browne Vintners; Harry Davis, also a former bootlegger, had been a shareholder in Browne Vintners; and Samuel I. Kessler, whose brother had been a director in Browne Vintners, participated in conferences held in 1942 to resolve disputes as to the distribution of the proceeds received from the sale of Browne Vintners. Much of the testimony in the trial court was devoted to parading before the jurors the corrupt lives of Rutkin and his associates, ranging from bootlegging to bribery and gambling.
As the majority pointed out, the trial judge stated that it was obvious that perjury had been committed by one side or the other at the trial. The District Court at the hearing on Rutkin’s motion for a new trial made a strikingly graphic analysis of the quality of the evidence at the trial and the caliber of the witnesses stating:
“The whole trial was filled with fantastic evidence, incredible evidence, evidence that if I had any hair would make it stand on end. And we wern’t dealing with a lot of good, church-going, moral individuals.” (Emphasis supplied.)
And at still another point in the same hearing the District Court stated:
“Reinfeld is no lily; Reinfeld started out and by corrupt, dishonest, thieving methods built up a tremendous fortune * * *. I think he stands as a living monument to what corruption can do.”
Four members of the United States Supreme Court in the dissenting opinion in Rutkin v. United States, 1952, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 6 heartily subscribed to the District Court’s characterization of the testimony as “fantastic evidence, incredible evidence.” Speaking through Mr. Justice Black they characterized Reinfeld’s testimony and that of supporting witnesses as a “fantastic story of supposed extortion”. 343 U.S. at page 147, 72 S.Ct. at page 580.
The offer of Frayne’s newly-discovered evidence must be considered in the light of the background of the record at the trial. The substance of his evidence is that Reinfeld told him that Rutkin was his partner in the Browne Vintners venture and that he would receive a substantial share of the profits therein. This, of course, is in direct contradiction to Reinfeld’s testimony at the trial that Rutkin was not his partner.
It is Rutkin’s contention that because of the fact that Frayne was for many years a respected and responsible government employee that his testimony might well serve to bring about his acquittal at a new trial. It is not disputed that Frayne was for years an Assistant Special Agent in Charge of the Department of Justice, Special Agency and Coordination Service in Charge of New York, New Jersey, Connecticut, Puerto Rico and the Virgin Islands and Chief of the Fugitive Squad, Bureau of Internal Revenue. In his official capacity it was his duty to know law violators in his district and he knew Rutkin and Reinfeld when they were engaged in smuggling alcohol and bootlegging during Prohibition days and thereafter. His testimony as a disinterested witness is certainly to be regarded as different in kind, quality and grade from that of the witnesses heard at the original trial —witnesses who were so vividly characterized by the District Court in its statement: “We weren’t dealing with a lot of good, church-going, moral individuals.”
If the jury believed Frayne’s testimony to be true it would certainly accord to it greater probative value than that of the ill-assorted lot of witnesses heard at the trial.7 That circumstance *659could well result in Rutkin’s acquittal at a retrial. Indeed the majority recognized that fact when it stated that Rein-feld’s “admissions (of Rutkin’s partnership interest in the Browne Vintners venture as sworn to by Frayne in his affidavit), if true, would tend to contradict Reinfeld’s testimony at Rutkin’s trial and to destroy Reinfeld’s credibility.” (Emphasis supplied.)
It is impossible to reconcile this statement with the majority’s further statement that “We cannot possibly say that the evidence offered by Frayne * * * is of such a nature and character that on a new trial it would probably produce an acquittal.”
It is likewise impossible to reconcile the majority’s finding that the District Court “gave adequate consideration to Rutkin’s motion” with its finding that the proceedings before the District Court were conducted in “summary” manner.
Dwarfing the question as to whether Frayne’s newly-discovered evidence entitled Rutkin to a new trial is the vitally important issue as to whether the District Court abused its discretion in its conduct of Rutkin’s motion for a new trial.
Since the record incontrovertibly established that the District Court’s conduct was “summary”, a reversal is mandatory.
. “The question now before us is whether the showing made by Rutkin on his motion for a new trial is sufficient to require that the jury verdict be set aside and Rutkin tried again.”
. “The true test as to whether evidence is cumulative depends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different grade.” Perry v. Hammock, 1947, 75 Ga.App. 171, 42 S.E.2d 651, 653. See also Bradley v. Kelley, 1933, 105 Vt. 478, 168 A. 554; Harris v. Jay, 1930, 92 Ind.App. 543, 174 N.E. 107.
. Van Meter v. Beckers, Mo.App., 1931, 42 S.W.2d 951; Foster v. Rosamond, 1937, 28 Ala.App. 99, 180 So. 334.
. State v. Evans, 1920, 98 Or. 214, 192 P. 1062, 1067, 193 P. 927. In that case the Court said: “ * * * it is plain common sense that the evidence of disinterested witnesses would be evidence of another character, differentiated by its very disinterestedness from the testimony of the defendant himself, which confessedly is from the month of a witness interested in his own behalf. It is therefore not evidence of the same character. In justice the two classes of testimony should be distinguished, and the defendant should havo the benefit of tlie declarations of disinterested witnesses.” To the same effect see People v. O’Brien, 1905, 110 App. Div. 26, 96 N.Y.S. 1045. There a defendant, convicted of robbery, sought a new trial for the purpose of introducing disinterested witnesses. The Court held that a new trial was justified, stating such evidence was not cumulative, inasmuch as it was not of the quality of that adduced at the trial, namely, that of other persons jointly indicted with the defendant. See also State v. McKean, 1922, 46 S.D. 85, 190 N.W. 781; Wisniewski v. Wysocki, Sup., 1942, 36 N.Y.S.2d 712; State v. Wiley, 1917, 106 S.C. 437, 91 S.E. 382 and Spencer v. State, 1913, 69 Tex.Cr.R. 92, 153 S.W. 858, 46 L.R.A.,N.S., 903.
. Meinberg v. Jordan, 1916, 29 Cal.App. 760, 157 P. 1005, 1007. A similar view was expressed in Markert v. Long Island R. Co., 1916, 175 App.Div. 467, 161 N.Y. S. 926, 929, where the Court said: “The strict rule with respect to cumulative evidence which was formerly applied on such applications no longer obtains, and it is now well settled that the rule with respect to cumulative evidence (from a disinterested witness), to be applied on a motion for a new trial on the ground of newly discovered evidence, whether the newly discovered evidence is cumulative or not, is: ‘Is it of such a character that it is liable to produce a different result on a new trial!’ * * (emphasis supplied). See also Webster v. Ek, 1932, 62 N.D. 44, 241 N.W. 503; Johnson v. Commonwealth, 1920, 188 Ky. 391, 222 S.W. 106.
. The principal issue in Rutkin v. United States, 1952, 343 U.S. 130, 72 S.Ct. 572, was “whether money obtained by extortion is income taxable to the extortioner under § 22(a) of the Internal Revenue Code [26 U.S.C.A. § 22(a)].”
. In support of its conclusion that Frayne’s proffered testimony was “merely cumula*659tive” the majority lias laid great stress upon the testimony at the original trial of Kessler and other witnesses who were partners in the Browne Vintners deal.
As to Kessler:
The majority stated: “He (Kessler) testified that Reinfeld agreed to pay Rut-kin $250,000 in settlement of the latter’s alleged interest in the (Browne Vintners) enterprise.”
There simply is no basis in the record for that statement; at no time did Kess-ler testify that Reinfeld had ever admitted, indicated or intimated that Rutkin had an interest in the Browne Vintners venture. All that Kessler ever testified was that Reinfeld had stated that Ruthin was claiming an interest in the Browne Vintners enterprise. That indeed is a far cry from an admission by Reinfeld that Rutkin did have such an interest. It is a far cry too from Frayne’s newly-discovered evidence that Reinfeld had directly admitted that Rutkin was his partner in the Browne Vintners transaction.
It must be noted that the majority has pioneered a startling new concept in the law of evidence — “the equivalent of admissions” — as evidenced by its statement: “These excerpts from the evidence at Rut-kin’s trial are the equivalent of admissions by Reinfeld of Rutkin’s interest in Browne Vintners and of Rutkin’s right to receive part of the proceeds of the sale.”
Assuming for the sake of argument the existence of a doctrine of “the equivalent of admissions” it would be ignoring the facte of life to say that the application of such an academic doctrine in the give-and-take atmosphere of a criminal trial would have the impact on a jury of direct testimony that Reinfeld had admitted Rutkin was his partner.
As to the other witnesses whose testimony was adverted to by the majority:
It would serve no useful purpose to analyze their testimony in minute detail. It is only necessary to say that not a single one of these witnesses testified that Reinfeld had ever admitted that Rutkin was his partner in Browne Vintners as Frayne offered to testify.