
    18823.
    Aycock v. The State.
   Beoxles, C. J.

1. The ground of the motion for a new trial based upon alleged error in excluding certain testimony is without merit, since that testimony is in the brief of the evidence transmitted to this court as a part of the record.

2. The charge of the court clearly and fully presented the issues in the case and the contentions of the State and the accused. Various excerpts from the charge are assigned as error. Some of them contain slight inaccuracies, but when these defects are considered in the light of the entire charge and the facts of the case, no harmful error is shown.

3. Error is assigned upon the refusal of the court to give several requested instructions to the jury. The charge given sufficiently covered such of these requested instructions as stated correct principles of law pertinent to the facts of the case.

Decided May 15, 1928.

8. B. Lippitt, James B. Thomas <& 8on, for plaintiff in error.

W. B. Gibbs, solicitor-general, contra.

4. Several grounds of the motion for a new trial are based upon alleged misconduct of the jury during the trial. The evidence as to such misconduct was met by a strong counter-showing from the State, which amply authorized the judge to decide that no such misconduct had been shown.

5. The evidence adduced by the movant as to the bias, partiality, and prejudice of the foreman of the jury was met by a counter-showing on the part of the State, and upon this question of fact the judge was the trior, and his decision was final.

6. The other alleged newly discovered evidence is cumulative and impeaching, and is not of such a character as would likely result in a different verdict upon another trial. Furthermore, it appears that this evidence could have been discovered by proper diligence on the part of movant and his counsel before the trial.

7. The verdict was amply authorized by the evidence, and the denial of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

LuJce and Bloodieorth, JJ., concur.  