¶1The opinion of the court was delivered by
¶2The defendant was convicted of gambling and appeals.
¶3All the circumstances indicated gambling and the checks which were captured and introduced in evidence were quite corroborative.
¶4The evidence relating to misconduct on the part of a juror was conflicting and the trial court decided in favor of the juror. Accepting his statements as true, his impropriety in suffering himself to be interrogated at all about the case did not amount to misconduct from which prejudice is presumed and no prejudice whatever was made to appear.
¶5The evidence given by the sheriff at the trial of one of the defendant’s associates was not radically different from the affidavit of the county attorney. The facts stated were essentially the same. Conclusions contained in the affidavit depended on the facts, and doubtless the jury drew their own conclusions. The defendant consented that the affidavit might be read. The subsequent evidence of the sheriff was not newly discovered evidence. At most it was merely evidence somewhat at variance with previous evidence of the same witness, and *801new trials are not granted on that ground. Besides this, the evidence was ample to sustain a conviction without the affidavit.
¶6Misconduct of the county attorney which was not committed needs no discussion. The instruction on the'subject of reasonable doubt was correct.
¶7The judgment of the district court is affirmed.