(dissenting). The statute provides that the court may grant a new trial of any cause upon the discovery of new evidence. General Statutes § 8013. We have always held with uniformity that a party is entitled to a new trial (1) if the evidence claimed to be newly discovered is in fact newly discovered, that is, discovered after trial; (2) if the evidence is material to the issues; (3) if *215it is not cumulative; (4) if, in reasonable probability, it is sufficient to produce a different result on a new trial; and (5) if it could not have been discovered, by the exercise of due diligence, for presentation at the former trial. Hamlin v. State, 48 Conn. 92, 93. One of the main grounds upon which the trial court based its denial of a new trial was that the plaintiff had failed to prove due diligence in discovering the new evidence. During oral argument, the state conceded that the trier was in error in this respect because there had, in fact, been ample proof of due diligence on the plaintiff’s part.
This concession is in itself somewhat disquieting since it tends to undermine one’s confidence in the other grounds adopted by the trier in denying Smith a new trial. The concession, disturbing as it is, has one commendable feature. It eliminates from consideration one of the five conditions referred to in the Hamlin case. The question now is whether the other four conditions mentioned in that case have been met. To this question there ought to be, it seems to me, but one answer. The evidence was admittedly discovered months after the former trial; nothing could be more material to the issues and, in the face of a record entirely devoid of any proof of Blumetti’s connection with the crime, nothing could be less cumulative than his confession; and finally, if the jury should accept that confession as true — a contingency lying well within the field of reasonable probability — it would legally be impossible for them to reach any other conclusion than that of not guilty of the crime charged.
One weakness in the position of my colleagues lies in their justification of the trial court’s denial of a new trial because that court did not believe Blumetti’s story. A motion for a new trial on the ground *216of newly discovered evidence should never be denied, at least in a capital case, merely because the trial judge refuses to believe the evidence. The test to be applied in determining whether another trial should be granted is whether the evidence meets the five conditions enumerated in the Hamlin case and whether the evidence is of such a nature that the jury, upon a new trial, could reasonably extend credibility to it. To state the matter affirmatively, the above test requires the trial judge to grant a new trial if he is satisfied that, regardless of his own disbelief in the trustworthiness of the new evidence, 1 j / there is not only reasonable certainty that the evidence will be admitted at the new trial but also a reasonable probability that the jury will accept it. Had the trial court applied this test, it could logically have reached no other conclusion than that Smith ought to have a new trial.
The cold, merciless fact which neither reasoning nor wishful thinking can destroy is that Smith, pursuing the identical course he has consistently followed, is still protesting his innocence of the crime of which a jury, relying exclusively upon circumstantial evidence, found him guilty, while another person not only has confessed to the commission of the murder but has placed Smith far from the scene of the crime.
The philosophical attitude of this court toward the appraisal of newly discovered evidence in a capital ease is stated in Andersen v. State, 43 Conn. 514. In that case Andersen sought a new trial on the ground of newly discovered evidence. He had been convicted of murder in the first degree and had been sentenced to be hanged. His defense had been insanity. The newly discovered evidence upon which he sought another trial was to provide proof of his *217insanity additional to' that submitted at the trial. This proposed new evidence consisted of the testimony of various persons who on different occasions had observed his conduct and had regarded it as indicative of insanity. One of the claims of the state was that the new evidence was merely cumulative, as it obviously was, and that a new trial should be refused for that reason. This court, to which the matter came by way of reservation, ignored the cumulative nature of the evidence and, in advising the Superior Court to order a new trial, expressed itself in this manner (p. 517): “If we were to make a rigid application of the rules which govern the Superior Court in civil causes, we should doubtless advise that a new trial should be denied; but in a case where human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor. . . . [P. 518] The rule we are considering, which is a salutary one in its application to civil causes, becomes harsh and oppressive when it requires the sacrifice of a fellow-being, who may possibly in the sight of God be innocent of the crime with which he is charged. . . . [P. 519] In a case where life is at stake, if the new evidence [it is to be noted that the evidence is not limited to that which is believed by the trial court to which the petition for a new trial has been presented], in addition to that already produced, will have the effect to raise a reasonable doubt whether the prisoner was in a condition of mind to commit the highest crime known to our law, and to incur the severest penalty which human law can inflict, it ought not to be regarded as cumulative so as to prevent another trial.”
If in the Andersen case a new trial was proper in order to permit the accused to have the jury’s con*218sideration of evidence which, was clearly cumulative and, hence, violative of the requirements set forth in the Hamlin case, how much more certain should be Smith’s right to a new trial, when the newly discovered evidence complies fully with the Hamlin requirements.
This is a most unusual case. Upon its outcome depends the life of a human being. To be sure, the man appears to be of a lawless crew, but no individual, however low his status, is to be dismissed as too insignificant or degraded for the law to shield, when justice requires it. Smith is, in my judgment, entitled to a new trial.