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Indeed the learned counsel for the prisoner admit Term. that the evidence upon the question of insanity was conflicting, and do not lay much stress either in their Bacciga- petition, or in the argument at the bar, upon this Case. ground of error. But the stress of their argument is laid upon that part of the bill of exceptions aforesaid, which declares as ground of error, the refusal of the court to set aside the verdict because of after-discovered testimony. And this in fact, presents the most important question we have to consider in this case.

After the conviction of the prisoner an affidavit was filed by one of his counsel, John S. Wise, Esq., in the following words:

"That John B. Young, Henry W. Hobson, and he, were counsel for Angelo Baccigalupo, upon trial of Baccigalupo, for felony in the hustings court of the city of Richmond; that both he and other counsel had great difficulty in procuring testimony for the prisoner; that nothing could be gotten from the prisoner to enable them to make an efficient defence; that he talked wildly and unintelligibly about his case; and that all testimony that they obtained, relative to his mental condition, was through accident and the kind offices of friends.

"That not until near the end of the trial did any of the counsel have any intimation of the testimony set forth in the Lynchburg affidavits filed herewith, and it was impossible to obtain such, prior to the prisoner's conviction.

"That the testimony of Coleman, as set forth in his affidavit, did not in any way come to the knowledge of counsel until after the conviction of the prisoner.

"That he and the other counsel have used all possible diligence and care in procuring all possible testimony in the defence of prisoner.

lupo's

"That they never had intimation, prior to the end 1880. of the trial, of the visit of Baccigalupo to Lynchburg. Term. January "That the evidence of the Lynchburg witnesses, Baccigalupo's visit to Lynchburg, and conduct there, Baccigawas obtained by accident through C. C. Salamone, Case. who learned it, pending the last trial, in a business letter, which is hereto attached; which letter was produced by the said C. C. Salamone, written in the Italian language, and which has been translated into the English language by John A. Pizzini, vice-consul for Italy; and is in the words and figures following,

to-wit:

"LYNCHBURG, March 18th, 1879.

"DEAR FRIEND PASQUINI:

"In looking over the papers this morning, there appeared before my eyes the terrible tragedy which occurred in Richmond Saturday night, between Angelo Baccigalupo and his wife. The affair has filled me with horror, and I am anxious to know how he ever came to marry his cousin, inasmuch as it had seemed to me of late that he had lost his brain for, or become infatuated with another widow, which fact is perhaps known to you. I can now confess to you that Angelo was here about two months ago, and at that time his appearance seemed to be more adapted for the habitation of a maniac, while his conversation was anything but that of a rational person. In short I, as well as others, believed absolutely that he had lost his mind. Let me know all the particulars in regard to the above, and then I will write you again.

"I salute you, and am, most affectionately,

"Yours,

"Z. TRIACA.

"P. S. My address is P. O. Box 161, Lynchburg.

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"That he further believes the prisoner to be in such January mental condition as to have incapacitated him from aiding or assisting in his own defence, and that the Bacciga- labors of counsel have been earnest and unremitting, lupo's Case. notwithstanding the entire want of co-operation on the part of the prisoner.

"JNO. S. WISE.

"Subscribed and sworn to before me, in open court, this 28th day of April, 1879.

"ANDREW JINKINS,

"Clk Richmond hustings court."

This affidavit of the counsel was accompanied by affidavits of three parties (Italians) residing in the city of Lynchburg, and also of one witness residing in the city of Richmond, all of whom expressed their opinions very strongly as to the insanity of the prisoner, and give accounts of certain conduct and acts on the part of the prisoner upon which they base their opinions; and these acts and conduct are set forth with much detail in the affidavits filed. Without setting forth specifically the facts and opinions to which these witnesses would have testified if they had been called before the jury, it is sufficient to say that such evidence would have been merely cumulative and corroborative of that evidence which had been already heard by the jury upon the trial.

The rules governing new trials on the ground of afterdiscovered testimony have been repeatedly declared by this court, and may be briefly stated as follows:

To authorize the granting a new trial on the ground of after-discovered evidence, four things are necessary: 1st. The evidence must have been discovered since the former trial. 2d. It must be such, as reasonable diligence on the part of the party asking it could not have

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secured at the former trial. 3d, It must be material in its object and not merely cumulative and corroborative or collateral. 4th. It must be such as ought to produce on another trial an opposite result on the Bacciga lupo's merits. See Read's case, 22 Gratt. 924, and cases there Case. cited. Also Tompson's case, 8 Gratt. 637; 3 Whart. Am. Cr. Law, § 3161; and St. John's ex'or v. Alderson, recently decided by this court, 32 Gratt. 140.

While the first two requisites laid down by these authorities have been fulfilled, the two latter are plainly wanting in this case. The evidence contained in the affidavits presented by the prisoner's counsel upon his motion aforesaid are merely cumulative and corroborative and are not such as would probably produce a different result.

It must be admitted that the record contains much evidence both as to the acts of the accused and the opinions of witnesses tending to prove the prisoner's insanity. The affidavits presented simply contain the opinions of other witnesses and facts of a similar character to those already testified to, tending to establish the prisoner's insanity. They are all simply cumulative and corroborative.

Nor do we think that such evidence, if it had been heard by the jury, would have produced a different result. A jury who had heard the decided opinions of distinguished physicians given upon the subject of the prisoner's insanity, could hardly have been influenced by the acts of the prisoner in a bar-room in the city of Lynchburg, when he might have been under the influence of strong drink, or by the opinions of such witnesses based upon his conduct upon a single occasion under the circumstances narrated by them in their affidavits.

We are therefore constrained to declare, upon the record before us, that the evidence contained in the

Term.

1880. affidavits produced was merely cumulative and not January calculated to produce a different result if it had been heard on the trial. We are therefore of opinion that Baccigaupon the well-established rules of law in such cases, lupo's Case. the said hustings court did not err in overruling the prisoner's motion for a new trial upon the ground of after-discovered evidence.

It is proper to say that the court has not been entirely free from difficulty in coming to its conclusion in this case and have given it the most anxious consideration. While there has been much evidence tending to prove the prisoner's insanity, it is certainly not of so conclusive a character as to induce this court in violation of its established rules on the subject of new trials, to set aside the verdict of the jury, approved by the judge presiding at the trial. The question whether the prisoner was insane at the time of the commission of the offence charged, was a question of fact for the jury who heard and saw the witnesses, who had before them, for days, the prisoner, and who concluded upon the whole evidence that he was not insane; and when that verdict is approved by the judge who presided at the trial, this court, whatever doubts it may have upon the evidence as presented in the record, would not be justified in setting aside such verdict.

We cannot say that this record presents such a case. Even the medical testimony is contradictory and confiicting as to the insanity of the prisoner. And in considering the evidence contained in the affidavits respecting the newly discovered testimony, relied upon, it is a pregnant and noteworthy fact to be considered that the evidence produced is that of witnesses living in a distant city, who saw the accused on a single occasion in a bar room, while the record shows that the prisoner had been for many years a resident of the city of Richmond where he had been engaged in a prosper