dissenting.
I cannot agree with the conclusion reached by the majority. Fred Odum, evidently affected by the pangs of conscience, asked to speak privately with the trial judge immediately after the jury had been discharged. When this request was properly refused, Fred went to Randy’s counsel that same evening and disclosed that he had committed perjury at trial and that he had been the driver of the truck at the time in question. The following week he gave a sworn statement, after proper warnings, to a deputy sheriff in the presence of Randy’s counsel.
*133This was, in my view, evidence which on its face meets the fourfold test of Fulcher v. Whitlow, 208 Va. 34, 155 S.E.2d 362 (1967). (1) It was clearly discovered after trial. (2) It was not available to Randy at trial; as the majority concedes, by no amount of diligence could he have forced his brother to confess.* (3) It was not cumulative, corroborative, or collateral; it went directly to the gravamen of the case and was the only evidence of a criminal agent other than the defendant. (4) It was material and, if believed, would produce opposite results on the merits. It is difficult to imagine evidence more likely to result in acquittal than these admissions by the defendant’s brother. This conclusion is strenghtened by the strong resemblance between the two brothers, rendering the victims’ identification of Randy less persuasive than might otherwise have been the case. The trial court observed: “The defendant and his brother appeared in this courtroom before the jury dressed almost identically, appearing almost identical
My concern is that the court never permitted Fred Odum to testify in support of the motion for a new trial. At the hearing on the motion on November 30, 1981, Fred was present in court and was sworn as a witness. He had engaged counsel who was recuperating at home from surgery and was unable to be present that day. In these circumstances, the trial judge refused to hear any testimony from Fred. This problem was temporary and could have been resolved by a continuance. After the court instructed him not to testify until he had consulted further with his attorney, Fred blurted out: “Well can I tell you all that I was the only one that operated my motor vehicle on that day?” The court stated that it would disregard that remark and told Fred to “stand aside.” The following colloquy ensued:
THE COURT: . . . Mr. Williamson, any other witnesses you wish to call?
MR. WILLIAMSON: Not at this time Your Honor. Without the benefit of this witness’ testimony I don’t believe it would be in the best interest of my client to conclude my evidence under this motion at this time.
*134THE COURT: Why not? What do you propose to do? When is the court going to have finality? Isn’t that a risk that you run anytime?
The court asked the Commonwealth Attorney his position with respect to the motion. The response was:
Your honor, the problem as I indicated from the outset is that I see the office of the Commonwealth Attorney, the responsibility there is to make sure that justice prevails. The question is whether or not it did prevail with the verdict returned as it was.
THE COURT: What do you propose I do now, do you move for the court to set aside this verdict or do you oppose it? [The Commonwealth Attorney] I can’t oppose it at this point in time, your honor.
After further colloquy, the court informed counsel:
I don’t give second trials. I want you to be sure.
The Commonwealth Attorney then stated that he would oppose the motion. The trial judge found that Randy had participated in a “cover-up” when he testified at trial. He stated:
. . . And when you let the person suffer for his own misconduct that is a proper remedy and that is exactly what Randy Odum is doing. He chose to make this bed and now the court says that he must sleep in it. He had his day in court and the fact that he took it on the chin for his brother is his problem. We don’t know whether the brother will be convicted or not or whether the brother is lying today. Whether the brother was lying last week. There is nothing that says that Fred Odum is telling the truth. I wouldn’t believe him on a stack of Bibles and I don’t think any jury would.
The court thereupon denied the motion for new trial and stated: “I’m not open to hearing a further motion from either side on this type of disposition of this case.” .
When Randy appeared for sentencing on February 19, 1982, his then retained counsel presented a new motion and offered to *135present “substantial evidence” in support thereof. The court stated that this was a request for a rehearing of the previous motion for a new trial. Defense counsel replied that the court had not previously heard “all the evidence.” Asked what new evidence was tendered, counsel presented a seven-page confession of Fred Odum, taken and transcribed by the Goochland County Sheriffs Department, after Fred had been given the requisite warnings. The court expressed the belief that the confession had been presented on November 30. Counsel responded that the court had seen only Fred’s brief affidavit on November 30, not the seven-page confession. The court then examined the confession and said: “Maybe that’s not before the court then.” Counsel pointed out other differences between the first and second motions for new trial. The court, however, refused to hear any evidence. It overruled the motion and proceeded to impose the sentences fixed by the jury.
The trial court surmised that both Odum brothers, and probably their mother, participated in a “cover-up” to exculpate Fred from the consequences of his guilt. They appeared at trial looking almost identical to confuse identification, gave evasive, probably perjured testimony, and kept Mrs. Collier in reserve, withholding her evidence from the jury.
Even if this suspicion is well-founded, it does not justify the trial court’s conclusion. If Randy perpetrated a fraud on the court, conspired to obstruct justice, or committed perjury, he should be tried and punished for those wrongs, but he should not be penalized for a crime he did not commit. I cannot agree with the trial court that in “taking it on the chin for his brother,” Randy is subjected to “a proper remedy.” The court’s remarks make it plain that it had some doubt whether Randy had committed the crime; but in view of his wrongful participation in a scheme to shield his brother, it considered that to be “his problem.” I think it is our problem.
The multiple protections which surround an accused in our criminal justice system are often mystifying to observers trained in other disciplines. We justify them by our overriding concern that no innocent person will be convicted in error. In order to have peace of mind on this point, we can tolerate the escape from punishment of many whose guilt is probable, but not proved beyond a reasonable doubt. Abhorrence of conviction of the innocent is not only the bedrock upon which our criminal justice system rests, it is also fundamental to the public perception of its fairness. Justice *136must not only be done; it must be seen to be done. A system which is perceived to be tolerant of the danger that an innocent person has been convicted, in order to punish him for some other act of which he is suspect, will forfeit public confidence.
The evidence of Fred Odum was so fundamental to the integrity of the conviction that it should have been heard, tested by cross-examination, and searched for corroboration before the motion for new trial was ruled on. In my view, the trial court abused its discretion by concluding in advance that it was unworthy of belief and disposing of the motion for a new trial without hearing it.
For these reasons, I would reverse the convictions and remand the cases for a hearing of all of the evidence tendered on the motions for a new trial, other than that relating to polygraph tests.
POFF, J., joins in dissent.
The majority opinion focuses on the fact that Mrs. Collier knew of “the alleged fact of Fred's involvement” before trial, and that she told Randy what she had heard. Even if this hearsay would have been available to Randy through an exception to the hearsay rule, it is no substitute for a direct confession by the actual perpetrator of the crime.