Appellant was convicted for murder with malice, it being charged that he killed Otis Jenkins on the 14th day of October, 1939, by shooting him with a pistol. The jury assessed a penalty of ninety-nine years in the penitentiary.
The record is before us without bills of exception, and the first error complained of is that there was insufficient evidence to show malice. While the statement of facts in the case is not lengthy, we would find difficulty in stating the case clearly and fully in view of the testimony presented. However, we are of the opinion that the jury was authorized to return the verdict which they did and that it is beyond the province of this court to disturb their finding on this assignment. Unsatisfactory as the evidence appears to be, it was the duty of the jury to pass on it and not this court.
*127The oral argument and brief in behalf of appellant present insistently that the jury assessed the heavy penalty because of appellant’s relationship to his outlaw brothers whose careers were so recently before the public and remembered by practically every man qualified to do jury service. In his motion for new trial he set up misconduct of the jury, alleging discussions concerning his brothers and others. The attorney who argued the case invited the kind and character of discussion which he alleged took place and it might have been expected to follow naturally as a result of his argument, but the very cautious conduct of the jury is highly commendable and gives no ground whatever for the allegations in the motion for a new trial, as clearly disclosed by their examination on a hearing.
The facts need no discussion as they raise no question of law for our consideration.
Appellant complains of the action of the court in failing to grant him a new trial because of the newly discovered evidence of Joe Metz, who was said to be in the State of Colorado at the time of the trial and whose whereabouts were unknown. No motion for a continuance was presented based on his absence. It is not disclosed that any diligence was used to secure his testimony and the nature of it, as best we understand the record, was impeaching testimony, so remote that its admissibility would be very questionable had the witness been present at the time. No authorities cited by him remotely sustain any contention made, and. we deem it unnecessary to enter into a further discussion.
The judgment of the trial court is affirmed.