¶1ON APPELLANT’S MOTION FOR REHEARING
¶2Appellant insists that we were in error in concluding that no proof was made of the allegations in his amended motion for new trial of alleged jury separation and misconduct, and in his motion for rehearing — which is supported by the affidavit of *325his attorneys — states that at the time of the hearing of the motion for new trial it was agreed that the court would consider all of the affidavits filed in the cause as if they were evidence presented at the hearing.
¶3We have, in view of the penalty assessed, examined all of the affidavits presented on the motion for new trial.
¶4 Such affidavits consist of the appellant’s affidavit, that of his two attorneys and the juror Theresa Owens, and fourteen counter affidavits filed by the state, including the affidavits of the other eleven jurors, two of the court bailiffs and Assistant District Attorney W. F. Alexander. It was the province of the court to resolve any issue presented with reference to the claim of jury separation and misconduct, and, in our opinion, the trial court did not err in refusing to grant a new trial.
¶5Remaining convinced that the cause was properly disposed of in our opinion on original submission, the motion for rehearing is overruled.
¶6Opinion approved by the Court.