The opinion
HAMLIN, Justice
(dissenting).
I am compelled to dissent from the majority opinion on rehearing. The last paragraph thereof sets forth that the case of State v. Dimm, 153 La. 95 , 95 So. 414 , relied on in the original opinion for the result reached, is distinguishable from this matter on the ground that, there (unlike here), the credibility of the newly discovered witness was not even brought into question.
I have re-examined the record in the Dimm case, 1 No. 25,373 of the Docket of this Court. It discloses that Bill of Exceptions No. 2 was reserved upon the overruling of a motion for a new trial as in the instant case. While this bill of exceptions was signed by the trial judge, he did not write a per curiam. Therefore, the record does not contain any expression by him as to his reasons for refusing the motion for a new trial. However, a reference to the brief filed therein by the State of Louisiana discloses the following statement:
“On the trial of the motion for a new trial it was argued on behalf of the State, and is argued now, that the matters set up in the motion are not sufficient to set aside the verdict of manslaughter, and for two reasons: The witness saw no part of the difficulty, and hence, even were it true that deceased was seen with a pistol in his hand after the shooting, that part would not disclose when the pistol was drawn, it would have no tendency to show that deceased with a pistol assaulted accused before accused fired his fatal shots. If deceased had a pistol and drew that pistol after accused had shot him, then he acted in self-defense, and furnished accused no excuse for the murderous attack already made. If it be true that witness saw deceased with a pistol, then beyond all question, deceased did not have that pistol in his hand before he was shot. That he did not display any weapon before being shot is established by the testimony of all the witnesses, even by the testimony of accused himself. In the second place, the ‘newly-discovered evidence’ is contradictory of defendant’s testimony and of the testimony of his witnesses." (Emphasis mine.)
Here follows a discussion of the testimony of defendant Dimm and the testimony of two defense witnesses and two State’s witnesses. In its brief the State further urges that none of these witnesses said a word about the deceased having a pistol in his 'possession. Then, having previously questioned the truth of the affidavit of the *356 newly discovered witness, the State further sets forth in its brief:
“It is perfectly plain that, however honest the nine-year-old hoy may be in the statement, he is mistaken; the affidavit was made months after the occurrence. The testimony shows that the only person upon the fatal night who had a pistol was Dimm. The man that the boy saw with a pistol was Dimm, and not Teal, and the man that he saw drop a pistol was Dimm, not Teal.
“The motion for a new trial was properly overruled.”
Thus it will appear that in the Dimm case the State (1) did urge that the newly discovered evidence was cumulative and corroborative of evidence given at the trial, and (2) did question the truth or credibility of the affidavit of the newly discovered witness; therefore, the statement of this Court in that case, to the effect that it was not intimated by the State that the newly discovered evidence was false or unworthy of belief, is erroneous. The foregoing excerpts from the State’s brief clearly show that the falsity or unworthiness of the affidavit and the credibility of the newly discovered witness were urged.
It is my view that there is no difference between the circumstances of the Dimm case and the circumstances of the instant case, and that the Dimm case is applicable here.
It is true that this defendant is charged with a heinous offense; nevertheless — as Associate Justice Dawkins so soundly stated in the Dimm case — he is still entitled to have the benefit of the newly discovered evidence.
For the reasons set forth herein and in the original opinion, of which I was the author, I respectfully dissent from the majority opinion on rehearing.
. I was one of the attorneys employed in the Dimm case after his conviction. As notary public I administered "the oath to the newly discovered witness when he signed Ms affidavit attached to the motion for a new trial. I prepared the brief in the Dimm case on appeal and argued the Dimm case before this Court.