star-pagination">*Page 190 and that, if a new trial were granted, in view of the son's criminal record and his inconsistent statements, there was no assurance that at a second trial of his father he would admit his own guilt.

It is true that in granting or refusing a new trial the court is exercising a discretionary power. Judge Jayne took occasion to characterize the powers to grant new trials in Bowen v. Healy's,Inc., 16 N.J. Misc. 113, at p. 115, (Sup. Ct. 1938), wherein he stated:

"* * * It is not, however, a boundless and illimitable discretion which can be peremptorily exercised."

And further at pp. 116, 117:

"It must always be apprehended that it is pre-eminently the mission of the jury to resolve the credibility of the testimony of the witnesses; to settle the facts and to determine the inferences which ought to be logically and legitimately drawn from them. * * *"

* * * * * * * * "These rules which characterize the power to grant new trials are well established, yet with the assumption that the exercise of the power is basically discretionary, we, as trial judges, are constantly importuned to weigh the conflicting testimony with exactness and precision and in reality to substitute our judgment for that of the jury. The power is essentially remedial in character. Its exercise is not intended to supplant the appropriate function of the jury."

Generally speaking, newly discovered evidence is evidence that is discovered after the original trial, as applied to a subsequent confession of another to the crime for which the accused has been convicted. It is said in 23 C.J.S., § 1454, atp. 1230:

"Evidence, not known to accused at his trial, which will tend to prove that the crime of which he has been convicted was committed by another person, may be ground for a new trial. A new trial on this ground rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence. * * * A new trial may be granted, however, on the deposition of another person that he, and not accused, is guilty. * * *"

In the instant case, in view of the agreed delay in the trial, grounded on the suspicions that the son, and not the *Page 191 father, had committed the crime, the son's subsequent confession, his rather extensive criminal record and the father's good record for approximately twenty-five years prior to his indictment, we are constrained to hold that the ends of justice will best be served if a new trial is granted and thereby permit the jury to pass upon the credibility of the son's admission of his own culpability.

We have considered the other grounds of appeal and, while we think no harm or prejudice was suffered by defendant as a result of the appealed rulings of the court, the witnesses Mrs. Sedam and Officer O'Rourke might well have been permitted to answer on cross-examination the questions to which objection was made by the State and sustained by the court.

The judgment of the County Court denying defendant's application for a new trial is reversed and a new trial directed.

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