justice, requiring reversal of defendant's conviction.
In the early mornings hours of September 29, 1973 a small group, including Lennie Washington and his brother Noel Washington, congregated outside the Aquarius Bar on Desire Street in New Orleans. The State produced evidence to the effect that Kenneth Sparks and the defendant, Edward Gilmore, had approached and an argument had ensued between Sparks and Noel Washington. Sparks produced a gun over which these two men began to struggle. Lennie Washington intervened on his brother's behalf and was shot. Several witnesses called by the State testified that the defendant Gilmore had fired the fatal shot with a second weapon which he had in his possession. However, it was the theory of the defense that Kenneth Sparks had shot the victim, and itthe evidence would be inadmissible at a new trial and secondarily for the reason that defendant had not exercised reasonable diligence in its discovery. We are compelled to conclude that our trial brother fell into error in both conclusions.
Essie Rodgers, who worked at the Aquarius Bar as a barmaid on the night of the shooting, testified that she saw Sparks fight with and shoot Lennie Washington. She further testified that one of the State's witnesses who named the defendant as the killer at the trial was not even present during the fracas. She also stated that she had not seen the defendant Gilmore at the Aquarius on the night of the shooting.
James Lewis, the owner of the Aquarius, testified that Sparks and Lennie Washington had an argument in