Appellant was convicted and sentenced to ■one year’s imprisonment in the State prison, upon an indictment charging him and another with larceny in the taking
He based his motion for a new trial, ■ mainly, upon newly discovered evidence, which he could not have produced upon the trial.
We have examined carefully the evidence upon which he was convicted, as, also, the newly discovered evidence, as shown by his affidavit, and the affidavits of the persons whose testimony he seeks to avail himself of upon another trial, and without setting out either, we think it sufficient to say, that in our judgment a new trial ought to be awarded.
The new evidence, as set out in the affidavits, is important to appellant for the purpose of showing, that whatever he may have had to do with the horn, he had no intention of' stealing it, nor of assisting another in the commission of such offence.
It may be observed in passing, that the owner of the horn, as'shown by his affidavit, has become convinced since the trial, that appellant is not guilty of the crime for which he was convicted.
Judgment reversed, and cause remanded, with instructions; to the court below to sustain appellant’s motion for a new-trial.