Willson, Judge. We are of the opinion that the court erred in refusing to grant the defendant’s motion for a new trial. There was some testimony adduced on the trial which tended to show that the defendant, at the time he is charged with having committed the crime, was of unsound mind, and irresponsible criminally for his acts. It is shown by the affidavit of his counsel that he was averse to and protested against interposing the defense of insanity, and would give no information which would enable them to ascertain the facts as to his mental capacity.

Nor could they obtain such information from even the defendant’s father, he also being averse to interposing such defense. It is shown by affidavits that, after the defendant’s conviction, very material evidence strongly tending to establish the defense of insanity came to the knowledge of defendant’s counsel. It is true that no diligence had been used by the defendant to discover and produce this testimony. On the contrary, his desire was that such testimony should not be resorted to.

If, in fact, the defendant is insane, it could not be expected that he would use diligence to obtain testimony, and the law w.ould not exact it of him. His counsel appear to have used reasonable diligence to obtain testimony, and did obtain some as to his mental condition, and show good reason why they did not produce the testimony which they show pan be produced on another trial. This newly-discovered evidence is certainly material, and calculated, we think, to change the •result on another trial.

It appears to us probable that the defendant is not a responsible person, and we think the law and justice demand that he should have a new trial. Wherefore the judgment is reversed and the cause is remanded. Sever sed and remanded. [Opinion delivered December 2, 1885.]