The opinion
O’NÍELL, C. J.,
(concurring In the decree).
I concur in the ruling on bill of exception No. 2 because the memorandum or notation on the proces verbal of the coroner’s in- • quest, “Homicide — Happened in front of residence,” was not of such importance that it might have affected the verdict if the jurors had observed the memorandum or notation and had .connected it with the notation in the proces verbal that the residence of the deceased was 3204 First Street. The argument for the defendant that but for this notation on the proces verbal of the coroner’s inquest the jury might have found the defendant guilty of manslaughter, instead of finding him guilty of murder, has little or nothing to support it. It is conceded that this memorandum or notation on the proces verbal was not read to the jury, and it is not probable that any juror read it.
I concur in the ruling on the bill of exception taken to the overruling of the motion for a new trial, because the alleged newly discovered evidence, outlined in the affidavit of Clarence Russell, was not of sufficient importance to be apt to affect the verdict of the jury. The difficulty between Paul Alberts and Amuster Dixon, which the supposed newly discovered witness saw, occurred half an hour before he heard that Dixon was killed. In my opinion there was not a sufficient showing that Clarence Russell was in fact a newly discovered witness to justify setting aside the verdict. I do not concur, however, in the opinion that a new trial should be refused in any or every case where newly discovered evidence is merely cumulative, even though it appears that the newly discovered evidence if believed by the jury ought to affect the verdict. The fact that a defendant accused of a crime may have one witness to prove a material fact in his favor is no reason why he should be denied the benefit of other witnesses to prove the same fact. The doctrine to the contrary if carried to its logical consequence might result in a denial of justice and of due process of law.