Keogh, J.
On the trial Waynes testified that he was with the defendant at the time the murder was committed; that he saw Mayhew strike Stephen Powell a blow with a heavy substance in .the end of a long stocking; that Mr; Powell fell and was at once robbed by the defendant; and that he and Mayhew then ran along several streets, their course as well as what they did as they ran being described by him with great particularity. .
Waynes afterward formally pleaded guilty to the crime of manslaughter as an accomplice of Mayhew in the murder of Mr. Powell and was sentenced to fifteen years’ imprisonment.
On this application for a new trial Waynes swears that all this testimony of his on the trial was false; that he did not see the defendant strike Mr. Powell, and was not with him at the time Mr. Powell was killed. .
The jury which saw and heard him .testify, has decided that his testimony then was the truth. It was corroborated by striking circumstantial evidence.
Judge. Bartlett, writing for the Court of Appeals, in a clear and most impressive review of the evidence given on the trial of Mayhew, says:- “After a careful study of this record we are of the opinion that the verdict of the jury convicting the defendant of -murder in the first degree is amply justified by the evidence. The corroborating evidence from the time the defendant and his accomplice approached the scene of the murder until the termination of their flight at Clemens’ saloon is most persuasive and impressive, strongly illustrating that strange fatality which so frequently accompanies the commission of crime.” 150 N. Y. 346-354.
It is contended by the deféndant’s counsel that subdivision t of section 465 of the Code of Criminal Procedure gives the defendant the right to a new trial irrespective of the truth or falsity of the testimony given by Waynes on this application, if it appears that such evidence,.if given on the former trial, would probably have changed the verdict. The grounds upon which this application is based and the reasons urged for granting it do not present a case which comes within the meaning and intention of the statute.
The application is; denied.