The opinion of the court was delivered by
Reavis, J.Appellant was charged by information with robbery, and, by a jury, found guilty as charged. Only the testimony of the prosecuting witness has been brought here in the statement of facts, although it is stated that a number of other witnesses testified upon the trial. It may be proper to observe that the presumption on the record is that the evidence was sufficient to justify the verdict, and, there being no objection to the evidence introduced, there can be no error predicated upon the nature of the evidence or its sufficiency. The assignments of error relating to the instructions given by the superior court have been carefully examined, and the instructions, taken together, fairly stated the law of the case as founded upon the evidence brought here. And so with the refusal of the instructions tendered by the defendant. They were nearly all covered by the instructions framed by the court.
Appellant also assigns error in the refusal to grant the motion for a new trial. The court was fully justified in disregarding the affidavit of McDonald as to statements made by two of the jurors, showing misconduct on the part of the jury. A stipulation shows that it was contradicted by the members of the jury. Meither will the discretion of the superior court be disturbed in its refusal to grant a new trial on newly discovered evidence as shown by the affidavits filed by defendant, as those were met by counter affidavits.
We do not think a case of surprise, because the evidence was not the same at the trial as it was at the preliminary *502examination, is made out. It appears that the same witnesses who testified at the preliminary examination were present and testified at the trial of the case, and that the justice of the peace before whom the preliminary examination was held was present also, and that one of the counsel for defendant, who was present at the preliminary examination, was also present at the trial of the cause.
Defendant also urges that the information charges the' defendant with the crime of robbery as a principal, and that the evidence of the prosecuting witness shows that the defendant could only be guilty of that of principal of the second degree. It is a sufficient answer to this contention to state that the distinction between accessories and principals in the first and second degree is abolished. Bal. Code, § 6782 (2 Hill’s Code, § 1189). And there was no material variation between the information and the proof. Defendant was charged as principal and was convicted as such.
Gordon, O. J., and Anders and Dunbar, JJ., concur.
On the record here, the judgment is affirmed.