
    STATE v. DONALD NOLTE.
    150 N. W. (2d) 698.
    May 12, 1967
    No. 39,838.
    
      
      Lanier, Knox & Shermoen, P. W. Lanier, Jr., and Robert R. Pflueger, for appellant.
    
      Douglas M. Head, Attorney General, and Raymond Lamb, County Attorney, for respondent.
   Per Curiam.

Defendant was convicted of stealing two calves. There is no claim that any reversible error exists in the trial. The motion for a new trial is based entirely upon an affidavit of one Mike Peterson that he heard the bailiff say to two girl students from Moorhead State Teachers College, in explaining the location of the farms involved, that “those cattle did not walk over there” and he, Mike Peterson, got the impression from the inflection of the bailiff’s voice that the bailiff meant that defendant had taken the cattle there; and that while this conversation went on the jury was filing down the aisle of the courtroom and may have heard the bailiff’s statements. This affidavit is refuted by the bailiff, who denies that he made any statements in the presence of the jury, and by the affidavits of 11 of the 12 jurors that they heard no such statement. Based on these affidavits the trial court found that there was no misconduct by the bailiff that would constitute grounds for a new trial. We agree.

Affirmed.  