¶1(dissenting).
¶2I would affirm the judgment of the trial court.
¶3Even if we should assume that the motion for new trial was properly before the district court, which I do not concede, there is no valid basis for finding that the court abused its discretion in refusing a new trial.
¶4As we observed in Opie v. State, Wyo., 422 P.2d 84, “it is within the sound discretion of the trial court to grant or refuse a motion for new trial based on the discovery of new evidence; and that the action of such court cannot be challenged except for an abuse of discretion.” We also there recognized that it is incumbent on a party who asks for a new trial on the grounds of newly discovered evidence to satisfy the court, inter alia, that it is so material that it would probably produce a different verdict.
¶5In the instant situation at the time of the sentencing when the probation officer’s report was being discussed, the prosecuting attorney indicated, without any disagreement on the part of the defendant, that defendant “apparently knew about it when they were buying the gas and so on, but he didn’t take an active part in it.” Counsel for the defendants stated that the defendants had aU indicated to him that they did not wish to contest “this thing or appeal it or go any further with it,” and that apparently the defendant’s “biggest sin here was probably trying to help his friends and got involved in this way … [an accessory] Before the fact.”
¶6Section 6-14, W.S.1957, provides:
“Every person who shall aid or abet in the commission of any felony … shall be deemed an accessory before the fact, and may be indicted, informed against, tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted or indicted or informed against; and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.”
¶7Under this statute, I fail to see any abuse of discretion on the part of the trial judge.
¶8The prevailing opinion says that “Appellant did not participate in the purchase of the gasoline although he was with the other defendants at the time. He had gone into the station and purchased some nuts,” but this statement overlooks the testimony of the attendant at the station where the gasoline was purchased that the defendants were “just standing there talking” while he was putting the gas in the can. Defendant Torres, who subsequently admitted to perjuring himself at the trial — and was given the longer sentence — indicated during his testimony that he. “thought” defendant bought some peanuts but was “not sure.”
¶9According to the prevailing opinion:
“ … The appellant said he had nothing to do with the fires, but admitted he had lied about activities of the other defendants. The trial court stated it would assume this was true because there was no proof to the contrary.”
¶10This is not my understanding of the record, which reflects the following:
“THE COURT: Then we have the added problem apparently someone, or possibly someone had their brother, this is Anthony is it not, had his brother come in and tell his story.
“MR. SCOTT: Stanley’s brother.
*943“THE COURT: Stanley’s brother Which may or may not be true. I don’t know whether it is true or not.
“MR. SCOTT: I- understand it is true that he drove this car.
“THE COURT: May be true, but he was given an opportunity by the County Attorney to take a lie detector test to see whether it was true and decided he didn’t want to.
⅜ ⅜ s}c ⅜ ‡ ⅝
“MR. S. VIALPANDO: … only thing I got to say is I had nothing to do with the fires. I made one mistake. I lied for them. That was my big mistake. As far as the charge me trying to get my brother to perjure himself to help us out that isn’t true. I never even suggested him coming to court. He went on his own and told Mr. Scott about it.
I never ever would suggest it to him.
“THE COURT: I will assume that is true because there is no proof ■ to the contrary. There is a question in my mind particularly when Mr. Torres obviously perjured himself in this court. When Mr. Rees asked Mr. Scott if he would be willing to take a lie detector test he told Mr. Scott he would definitely be willing to take a lie detector test and then—
“MR. S. VIALPANDO: As far as perjuring himself I never once ever told him.
“THE COURT: Perhaps he didn’t. I am going to assume that he did not.”
¶11From this colloquy it is obvious to me that the trial court merely indicated that he did not believe defendant had procured the perjured testimony of his brother, if indeed the testimony was perjured.
¶12The prevailing opinion correctly says that the circumstantial evidence against the appellant was sufficient to sustain the finding of guilty, and as I have pointed out, there is no valid reason for the granting of a new trial.