
    4431.
    Oppenheim v. The State.
   Russell, J.

1. A new trial will not be granted on account of alleged newly discovered evidence merely impeaching in its character, or relat-' ing to a matter immaterial to the issues involved in the trial. A new trial will tie granted upon the ground of newly discovered evidence only when it appears that the introduction of the evidence would probably, and, if credited, should, produce a different result on the second trial.

2. In relation to the prisoner’s statement on the trial, the court charged as follows: “He has a right to make to the court and jury such statement in this case as he may deem proper in his defense. It is not made under oath, and has only such force as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case.55 This instruction was not erroneous because, as insisted, it might be susceptible to the construction that the prisoner’s statement could have been made under oath.

Decided March 18, 1913.

Indictment for misdemeanor; from Chatham superior court— Judge Charlton. August 23, 1912.

Bouhan & Herzog, for plaintiff in error

Walter G. Hartridge, solicitor-general, contra.

3. The instruction that the jury should find the accused, guilty if they found that the State had shown, beyond a reasonable doubt, “that the defendant sold morphine named in the indictment or special presentment, whatever it is,55 is not subject to the criticism, that it authorized the jury to convict the accused without reference to the article sold. The words “whatever it is” obviously refer to the words “indictment or special presentment.55

4. One who sells morphine not on the order or prescription of a licensed physician, dentist, or veterinary surgeon, is guilty of a misdemeanor, without reference to whether the seller be the proprietor of a drugstore, or merely the employee of such proprietor.' Penal Code, § 459; Civil Code, § 1651. The instruction of the trial judge embodying the foregoing principle of law was not subject to the criticism that it was argumentative, or contained an expression of an opinion as to what was proved, or was misleading or confusing.

5. The evidence warranted the verdict. Judgment affirmed.  