By the Court.
Benning, J.delivering the opinion.
[1.] The question in this case is, whether the Court was right or not in refusing to grant the motion for a new trial ?
The only ground in that motion argued before this Court was the last. And that is the only ground which will be discussed by this Court. The insufficiency of the others becomes manifest as soon as they are seen.
The last ground was this: “ Because two of the Jury that rendered the verdict were members of the Jury by whom a mistrial had been made on a previous occasion; which fact was unknown to the defendant until after the verdict.”
We agree with the Court below in thinking this ground nbt sufficient.
If Edmondson himself did not know the fact referred to in this ground, it is to be presumed that his Counsel did. It is to be presumed that they, at least, were present at the mis*664trial, and if they were so present, they must have seen every-member of the Jury that made the mistrial. There is no-•affidavit from them of forgetfulness or other thing to relieve-the case from this presumption.
And if Edmondson’s Counsel knew of the fact, it was the•«ame, so far as the present question is concerned, as if he-•himself knew of it.
Besides, the two Jurors swear that they were not influenced by their previously formed opinion, but were governed-solely by the evidence, and the evidence is such that it might well have governed them in their concurrence in the verdict.. Indeed, it is such that it required them to agree to the verdict.
We see nothing to justify disturbing the refusal of the Court to grant a new trial in this case.