¶1*355A petition for a rehearing is made in this case on two grounds.
¶21st. That the Court in its opinion did not speak of the affidavit of C. H. George in considering the point as to the separation of the jury, and the petition asserts that he testified to something material which was not stated in the affidavits of the other two witnesses.
¶3The affidavit of George was not specified because in it he not only stated nothing material which was not stated in the other affidavits, but in fact did not say that the jury were separated, or that any of them were at any time separate or apart from the others, which fact was directly stated in the other affidavits. The Court considered all the affidavits, and particularly specified those which contained not only everything material for the prisoner which was in the affidavit of George, but also some expressions in addition which had a more direct reference to the point raised.
¶4This witness George was produced and examined on the motion for a new trial in regard to his affidavit and the facts it specified. Also, eleven of the twelve jurors were examined, as well as the two Sheriff’s officers who had charge of the jury, and two other persons, to wit, Penny and Bidleman. The testimony of all these persons concurs in showing that no injury resulted to the prisoner from the facts alluded to in the affidavits.
¶52d. That the Court, in speaking of the application for a continuance on the ground of surprise by the introduction of the witness R. Snap, stated that no affidavit or other evidence of surprise was introduced when the motion was made, and the petition says that it appears by the record that the prisoner’s counsel offered to make an affidavit if time was given to prepare it, when the prosecution considered the affidavit made, and to be filed as of that date.
¶6We do not find anything to this effect in the record. On the contrary, in the minutes of the proceedings on the motion for a new trial, the Court is stated to have said, in speaking of the motion for a continuance: “ It was for them to show the fact that they were taken by surprise; they did not make the showing and I overruled it.”
¶7It also appears by the testimony of the Clerk of the Court that no affidavit was filed when the motion for a continuance was made, and that there is none on file. The only affidavit which can be *356considered as applying to the matter in any way, and which is the one referred to in the petition for rehearing, is the one made by the prisoner some days after the trial, and which was used on the motion for a new trial. The effect of this affidavit we considered in our former opinion. It may be further said in regard to the testimony of the witness Snap, that it appears that this was a second trial, and that the same witness was examined on the former trial, and the prisoner therefore must have been informed of the testimony he could give, and that he would probably be again called on the second trial.
¶8Rehearing denied.