The opinion of the court was delivered by
Mason, J.:
Lee Wallace was convicted of the sale of intoxicating liquors, and appeals.
When the case was called for trial the county attorney was allowed to endorse upon the information the names of a number of additional witnesses, including that of the witness upon whose evidence the conviction was had. The defendant complains of this ruling, but it was within the discretion of the court. The application for leave to endorse the names had been made two days before; no continuance was asked on account of it, and it does not appear that any prejudice resulted.
The witness referred to testified that at a certain time he had bought whisky of the defendant. The defendant did not testify. A motion for a new trial was filed on the ground that two witnesses had subsequently been discovered who would testify that at the time designated they had heard the witness referred to ask the defendant for some whisky and had heard the de fendant tell him he had none. We do not think the affidavits to this effect required the granting of anew trial.
A new trial was also asked upon the ground that during the deliberations of the jurors one of them had said: “How are we going to square ourselves with the people in the face of so many witnesses, if we don’t convict.?” This is not such misconduct as to require a reversal.
On the hearing of the motion for a new trial the county attorney, on request of the court, filed an affidavit stating that at the time he filed the information he had knowledge of the sale upon which the defendant was convicted. Whatever bearing the fact may have had upon the matter under consideration, there was nothing improper or prejudicial in its thus being made of record.
The judgment is affirmed.