(dissenting).
I dissent. The complaining witness, David Wilson, who lives about 2 miles east of Kragnes, Minnesota, drove to Moorhead with his folks on July 3, 1956. He intended to contact his sister and ride home with her that afternoon. After arriving in Moorhead he walked to Fargo and while there “walked around and went over by the swimming pool and started back to Moorhead again.” On his way back to Moorhead at the “Corner Hotel” he met two Indians who were sitting in a car. After asking him where he was going, they offered to take him home. He accepted and entered what he described as about a 1940 Chevrolet automobile. He said he had seen the driver of the automobile out at Kragnes before. The Indians had four to six packs of beer, most of which they consumed while driving various places. Finally the driver asked David if he had any money and when David told him he had $2 he asked whether he could borrow it. David said “No, I have been saving it.” David then tried to get out of the car but the defendant, whom he had never known before, stopped him from doing so and struck him on the head with a club while the driver reached into his pocket and stole his money. They then drove back to Moorhead where David was told to get out of the car and lie down on the ground, which he did. The defendant then got out of the car and struck him on the head with the club again. He became unconscious and remained so until found.
At about 1:30 a. m. Gerald Keogh, a 20-year-old first-aid instructor, found David and tried to arouse him but was unable to do so because *268of his unconsciousness. Keogh described the injury and blood on David’s head as well as his torn clothing. Norris Dahl, a Moorhead policeman, was called, who also described David’s injuries and testified that he was semiconscious at the time and completely incoherent. He was taken by Dahl to St. Ansgar’s Hospital in Moorhead. Both men testified that David had not been drinking.
Warren, wearing a pair of boots which David had described, was picked up and taken to the hospital where he was identified by David as the man who assaulted him. At the trial David also positively identified him. Moreover, John Sullivan, a Moorhead police officer, testified that, after Warren was apprehended but before he was told of the charge against him, he stated “What did you pick me up for? I didn’t slug anybody.” (Italics supplied.) Upon this evidence and the record as a whole, in my opinion, there is ample reason for defendant’s conviction.
The majority opinion grants a new trial because of newly discovered evidence. That evidence consists of an affidavit made by Palmer Brunette and one made by defendant’s attorney. All that is material in Brunette’s affidavit is that he is a tall, thin Indian with a mustache who resides at Ponsford, Minnesota; that he is acquainted with David’s uncle and on June 24, 1956, he was in Kragnes and saw David and his father. At the trial David did testify that the driver of the automobile was a tall, thin Indian with a mustache whom he had previously seen at Kragnes. The affidavit of defendant’s attorney states that after the conviction Brunette was brought to Moorhead, and he claims that David admitted that he was the tall, thin Indian with the mustache whom he had seen at Kragnes but “denied that he was the driver of the automobile in question.”
The fact remains, however, that the identification of defendant is not affected by the newly discovered evidence nor does it affect David’s claim that Brunette was not the driver of the automobile. It is not surprising to find some confusion in the testimony of a boy 15 years of age. Where a boy has been assaulted and rendered unconscious so as to require hospitalization, as was David in this instance, care should be exercised before a new trial is granted.
It is well settled that whether a new trial should be granted on the *269ground of newly discovered evidence rests very largely in the discretion of the trial court. Such discretion is to be exercised cautiously and sparingly and only in the furtherance of substantial justice and to prevent manifest and grave injustice. If, from the record, it appears that the trial court has fairly exercised its discretion in denying a motion for a new trial on that ground, this court will not interfere. The inquiry here is not whether a new trial might have been properly granted upon the record but whether a refusal to grant it involved the violation of a clear legal right or a manifest abuse of judicial discretion. State v. Smith, 221 Minn. 359, 364, 22 N. W. (2d) 318, 320; 14 Dunnell, Dig. (3 ed.) §§ 7123, 7125.
Upon the record as a whole I am satisfied that the trial court was thoroughly justified in sustaining the conviction.