¶11. The newly discovered evidence is certainly material, and such as may, on another trial, alter the verdict. The principal witness who testified at the trial may have been mistaken as to who struck him. In such a melee as this wras, such a mistake might well occur. The affidavits are vei-y positive and clear, and if they are to be credited, the defendant is clearly not guilty of assault with intent to murder. Nor is the evidence, in any fair sense, cumulative only. True, it goes to the principal fact controverted on the trial, to-wit: who struck Donovan; but upon that point the prisoner produced no evidence. Both of his witnesses testified that they did not see that blow struck; and, though they were close at hand; this *515might well be. Who does not know how common it is for persons to be in the middle of-just such a scene, and yet not be able to tell who did this and who that? To make a case of cumulative evidence, it must be not onty on a point principally controverted at the trial, but a point on which the party seeking the new trial produced evidence.
¶22. Nor do we think there is a want of diligence. The prisoner was arrested immediately, and has had no opportunity for inquiry. His brother, with whom he may be presumed to have had intercourse, was, as the affidavits show, himself the one who struck the blow. When counsel, assigned by the court, undertook to inquire into the facts, he was unable to get at the truth, the witnesses refusing to tell what they knew, and misleading him by saying they knew nothing. They did wrong; but was the prisoner to blame for that? Could he know that, if put on the stand, they would testify as they say? He might well think they did not see the blow struck. Upon the whole, we think the principles of justice require that there should be a new trial in this case.
¶3Judgment reversed.