
    BERRONG v. THE STATE.
    No. 10498.
    May 18, 1935.
    
      Jack G. Tarpley, W. V. Rice, Roger S. Coll, and G. W. Franlcs, for plaintiff in error.
    
      M. J. Yeomans, altorney-gmeral, Robert McMillan, solicitor-general, B. D. Murphy, J. T. Goree, and T. S. Candler, contra.
   Beck, Presiding Justice.

Bon Berrong was convicted of the offense of murder, and made a motion for a new trial, which was overruled. The only ground of the motion which is insisted upon is that one of the jurors trying the case was related to the prosecutor within the prohibited degree. This ground, if established by proof, would, require the granting of a new trial. From examination of the affidavits submitted by the movant it appears that one of the deponents did testify to facts that tended to establish the relationship; and there were others tending to corroborate this. On the other hand, by an affidavit submitted by the State and corroborated by certain other affidavits, an issue of fact as to the relationship was made. That being true, the determination of this issue was within the discretion of the trial judge; and his finding that the relationship claimed did not exist will not be set aside, it not appearing from all the evidence submitted upon this question that there was an abuse of discretion. Consequently the judgment of the court below is

Affirmed.

All the Justices concur.

Atkinson, J., concurs in the result.  