The defendant was convicted in the district court of Williams county, upon a charge of venue from McKenzie county, of the crime of grant larceny, and sentenced to imprisonment in the state’s penitentiary for the term of two years. Thereafter a motion for new trial was made and denied; and this appeal is taken from the judgment and the order denying a new trial.
There are 153 assignments of error, but 148 of these relate to rulings on the admission or rejection of evidence, and are grouped by appellant under five separate classes, viz., (1) Incompetent, argumentative, and improper rebuttal; (2) irrelevant and immaterial; (3) leading, suggestive, and calling for a conclusion of the witness; (4) assumption of a statement of facts and no foundation; (5) improper restrictions on cross-examination. It will be observed that the objections indicate that the rulings challenged related to matters largely within the discretion of the trial court. We have carefully examined every one of the assignments, and are unable to find any instance wherein the ruling of the trial court constituted prejudicial error. In fact, on the oral argument, it was virtually conceded by appellant’s counsel that the rulings of the trial court upon the admission or rejection of evidence would not in themselves entitle defendant to a new trial, but appellant’s counsel contended that these matters, when considered with the other matters urged in support of the motion for a new trial, would require that a new trial be granted. The remaining six assignments are based upon the insufficiency of the evidence to sustain the verdict; the alleged misconduct of a juror named Turner; and newly discovered evidence. These are the only assignments of error worthy of any serious consideration.
The testimony shows that on December 31st, 1912, one Elbert Payne was the owner of about 397 bushels of flax stored in a shack situated about 20 miles from the town of Kiverview, and only a short distance from where the defendant and his brother owned and farmed certain lands in McKenzie county in this state. In the morning of December 31, 1912, a son of one Clark had occasion to go to the shack in question to look for a certain knife which had been left there at some previous time, and when there he observed that the roof of the shack had been broken open and some flax taken out of the shack. He forthwith notified his father and also Mr. Payne, the owner of the flai *73with the result that these parties and another neighbor went up to the shack in question and found that the roof had been broken open and some of the flax removed; they also found a wagon trail leading to the shack, and they testified positively that they “back-tracked” this trail to the house of the defendant, — to the very place in the yard where the wagon started that morning. And they further testified that they thereupon tracked the wagon from the shack all the way to the elevator at Riverview, where the flax was delivered. These witnesses for the state claim that they were able to track this wagon on account of a peculiar mark made by the hoof of one of the horses, by reason of the fact that a piece had been broken out of the hoof. It is conceded that these parties reached the elevator at Riverview shortly after the defendant had unloaded his load of flax, and while the defendant was still at the elevator. It is likewise conceded that at that time Payne accused the defendant of stealing the flax. The complaining witness also claims that at that time he called the defendant’s attention to the defect in the hoof by means of which it is claimed the defendant was tracked, and in this he is corroborated by other witnesses. The defendant denies this, and says that no-reference was made to the defective hoof, and he and his witnesses claim that the horses were shod, and that for that reason the mark claimed to have been made could not possibly have been made. The defendant produced several witnesses who testified that the horses were shod. But, on the other hand, as already stated, three witnesses for the state testified positively that they tracked the horses on the day the flax was stolen, first from the place of the defendant to the shack, and next from the shack to the elevator where the grain was sold. These witnesses testify positively that the horses were not shod on that day, and that they noticed the peculiar mark as already stated, and at the elevator observed that the horses were not shod and noticed the defect in the hoof which caused the mark to be made. There is a square conflict in the testimony as to the condition of the roads on that morning, and the character and quality of the flax. Appellant’s counsel, however, contends that the prime question in the case is whether or not the horses were shod on the 31st of December, 1912, and his contention is that upon this question the evidence is insufficient to sustain the verdict. It is true that there is strong evidence on this feature of the *74<case in favor of the defendant; but on the other hand there were four witnesses for the state who testified positively that they observed the horses on the day in question and that at that time the horses were not shod.
The question of the credibility of the witnesses and the credence to be given to their testimony was a matter for the jury, and its finding, based upon conflicting evidence, is binding upon this court. The only authority this court has is to review the rulings of the trial court to ascertain whether or not the defendant has been afforded a fair trial under the laws of this state. He was entitled to have the issues of fact submitted to a jury, and the finding of the jury upon .an issue cannot be set aside, if there is any substantial competent testimony in the record to sustain such finding. And there is ample testimony in this case from which the jury could find that the horses •of the defendant were not shod on December 31st, 1912. This is .also true of the other issues of fact involved in the action. The jury believed that the witnesses for the state told the truth upon all disputed issues, and that the defendant and his witnesses did not, and by their verdict have said that they were satisfied beyond a reasonable doubt of defendant’s guilt. The trial judge, who saw and heard all the witnesses testify, and had an opportunity to observe their demeanor while testifying, has added his approval to the jury’s finding by denying a motion for a new trial. The findings of the jury and trial court upon this question are binding on this court.
The charge of misconduct of a juror is based solely upon the affidavit of one Jensen. The material part of the affidavit of Jensen is .as follows: “That while he was attending said trial as a spectator, .as aforesaid, he became acquainted with one W. C. Turner, who was one of the regular panel of jurors during said term, and who was one of the jurors who returned the verdict finding the defendant above named guilty of the charge of grand larceny. That after he became ‘acquainted with the said juror, Turner, as aforesaid, and while said .action was being tried, before the same was closed either by the state or by the defendant, and while the defendant above named was .submitting testimony in his behalf,-affiant and said Turner were sitting-in front of the Great Northern Hotel in said city of Williston, conversing; said Turner aforesaid stated to affiant that the defendant above *75named, Ira Cray, and his witnesses, claimed that the roads i'n the vicinity of where the flax was claimed to have been stolen were frozen and hard; that he, Turner, knew better; that he knew they were dusty, he having done considerable hauling that fall and winter himself. That there was only one question in the case, and that was, ‘If the defendant can prove that the horses were shod, if he can satisfy us that the horses were shod and that there wasn’t any piece out of the hoof, there wouldn’t be anything to the case,’ as far as the state was concerned. ‘But I believe in my own mind that Cray is guilty, and if it was left to me he would be found guilty.’ Affiant further says that the same evening while affiant was passing the Great Northern Hotel, he saw said Turner in conversation with one of the witnesses who appeared for the state, a witness by the name of Hnfred, a grain buyer at Riverview, as he testified, and affiant heard said Turner in said conversation use the name of the defendant above named, and knows of his own knowledge that he and the said Unfred were talking concerning the above entitled action; that immediately'that said Turner and Unfred saw this affiant they quit talking, Unfred getting up from the seat upon which he and the said Turner had been sitting, and walked away; that affiant then sat down beside said Turner and at said time said Turner informed affiant that Unfred had stated that he was but a witness and didn’t care how the case went.”
In opposition to the affidavit of Jensen, the state tendered the affidavit of the juror Turner, which is as follows: “That he is a citizen and resident of Williams county, North Dakota, and' that he is fifty-four years of age; that his postoffice is Buford, North Dakotá, but that his nearest railroad point is Bainville, Sheridan county, Montana. That he was one of the jurors on the regular panel for the June, 1913, term of the district court of Williams county, and was one of the jurors who tried the case of the State against Ira Cray, in which the defendant was charged with the theft of certain flax; that affiant has' read a copy of an affidavit of one John II. Jensen, exhibited to him by C. C. Converse, of Schafer, North Dakota, in which said Jensen states that this affiant stated to said Jensen that this affiant knew that the roads in the vicinity where the flax was claimed to have been stolen were not frozen and hard, but that they were dusty, he having done considerable hauling that fall and winter himself; and' affiant *76now states on his oath that he did not make such statement, nor did he make any statement in substance the same, either to the said Jensen or to anyone else, either at the time and place claimed by Jensen or at any other time or place; that, as a matter of fact, this affiant has never at any time done any hauling on the south side of the Missouri river, nor within 30 or 40 miles of where the flax was stolen, and has no acquaintance in that vicinity, and had not been anywhere in that vicinity during the fall of 1912 nor the winter following, and had no means of knowing the condition of the roads in question in this case except the testimony given by the witnesses; that, with respect to the statement in Jensen’s affidavit to the effect that affiant stated to him that ‘if the defendant can prove that the horses were shod, if he can satisfy us that the horses were shod and that there wasn’t any piece out of the hoof, there wouldn’t be anything to the case, as far as the state was concerned,’ affiant states that he has no recollection of making such a statement except to other members of the jury in the jury room; that affiant cannot remember, and does not believe, that he made such a statement except to a member of the same jury; that said Jensen is a stranger to the affiant; that affiant has no recollection of meeting him nor of talking to him, nor to anyone else in his presence, and cannot believe that he could have made such a statement as the one set out in this paragraph to a total stranger, as Jensen is; that, with respect to the statement attributed to affiant by Jensen to the effect, ‘I believe in my own mind that Cray is guilty, and if it was left to me, he would be found guilty,’ affiant now states positively on his oath that he did not make such statement nor any statement of like meaning, neither to Jensen nor to anyone else; that the defendant and all his brothers and thé complaining witness and all the witnesses for the state were entire strangers to this affiant at the beginning of the trial, and that affiant undertook and entered upon the duties of a juror in said ease with a mind perfectly free from bias of any sort, either for or against the defendant; and that, throughout the trial, his only interest in the case was to perform his duties as a juror fairly and impartially to the best of his ability, and that is what he did.”
The question is whether or not the juror Turner was shown to be an unfit person to discharge the duties of a juror in this case. The *77•defendant was entitled to a fair trial, and this included the right to be tried by twelve fair and impartial jurors. The presumption is that he has had such trial, and that the jury by which he was tried consisted of fit jurors, who properly discharged their duties. The burden is upon the defendant to overcome this presumption, and show that he has been deprived of a fair trial. There is nothing to indicate who Jensen is, or that he is worthy of any more, or as much, credit as Turner. The trial judge had an opportunity to observe not only the witnesses, but the jurors as well. He was entirely familiar with all the various details and incidents in the case, which it is impossible for this court to ascertain. And being possessed of this knowledge,— in addition to that conveyed by the affidavits, — he made a finding .adverse to the contentions of appellant. This finding is entitled to great credence by this court, as it related to a matter peculiarly within the knowledge of the trial judge.
It is also well settled that the question of granting or denying a motion for a new trial on the ground of alleged misconduct on the part of a juror is largely within the sound judicial discretion of the trial court, and the appellate court will not interfere unless an abuse •of such discretion appears. In State v. Robidou, 20 N. D. 518, 523, 128 N. W. 1124, Ann. Cas. 1912D, 1015, this court said: “The refusal or denial of a motion for a new trial for alleged misconduct •on the part of the jury is, as a general rule, a matter within the discretion of the judge presiding at the trial; and unless it appears that this discretion was abused, or that there has been palpable error, or unless it appears that the trial court refused to review and consider the evidence by which its consideration of the motion should have been guided or controlled, the refusal of the trial judge to grant a new trial will not as a general rule be disturbed on appeal. 12 Enc. Pl. & Pr. 561, 562 and cases cited; State v. McDonald, 16 S. D. 78, 91 N. W. 447; State v. Andre, 14 S. D. 215, 84 N. W. 783; Pettibone v. Phelps, 13 Conn. 445, 35 Am. Dec. 88; State v. Allen, 89 Iowa, 51, 56 N. W. 261; State v. Beasley, 84 Iowa, 83, 50 N. W. 570; Perry v. Cottingham, 63 Iowa, 41, 18 N. W. 680; State v. Salverson, 87 Minn. 41, 91 N. W. 1, 12 Am. Crim. Rep. 644; People v. Johnson, 110 N. Y. 134, 17 N. E. 684; State v. Cucuel, 31 N. J. L. 249; State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Howard, 118 *78Mo. 136, 24 S. W. 41. In State v. McDonald, 16 S. D. 78, 91 N. W. 447, the court says: ‘Upon a careful examination of the affidavits, we are unable to say that the trial court erred in refusing the motion for a new trial upon the ground stated. The question was largely in the sound judicial discretion of the trial court, and, this court being unable to say that there was an abuse of such discretion, the ruling of the court should not be disturbed.’ In State v. Andre, 14 S. D. 215, 84 N. W. 783, the court says: ‘A motion for a new trial for alleged misconduct of the jury, or any other ground specified by statute, being addressed to the sound discretion of the trial judge, whose superior knowledge of all the facts and circumstances enables him to know the requirements of justice, a reviewing court will' never interfere, unless an abuse of such discretion affirmatively appears.’ ” See also Wightman v. Butler County, 83 Iowa, 691, 49 N. W. 1041; Svenson v. Chicago G. W. R. Co. 68 Minn. 14, 70 N. W. 795, 2 Am. Neg. Rep. 183; State v. Baughman, 111 Iowa, 71, 82 N. W. 452; State v. Gray, 18 Mont. 51, 44 Pac. 411; State v. Webb, 20 Wash. 500, 55 Pac. 935. We are satisfied that this court cannot say either that the trial court abused its discretion, or that it erred in finding that the juror Turner had not been guilty of such misconduct as would require a new trial.
As already stated, a new trial was also asked on the ground of newly discovered evidence, and several affidavits were offered in support of this ground of the motion. Counter affidavits were offered by the state to show that all of the newly discovered evidence was either known to the defendant at the time of the former trial, or could have been known if he had exercised due diligence. Practically all of the newly discovered evidence is cumulative, and some of it doubtless was known to the defendant at the time of the former trial. Appellant asserts that the rule laid down in Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. 762, to wit: “A new trial will be granted on the ground of newly discovered evidence only where the latter is of such character as will probably change the result of the former trial,” — should be applied. And he earnestly contends that the alleged newly discovered evidence is of such nature that on a new trial a different result is probable. This was, however, a matter peculiarly within the knowledge of the trial judge, who saw and heard the witnesses, including *79the defendant, observed their manner and appearance, and was familiar with the various incidents in the trial of the action.
Appellant also contends that the rule requiring a showing that the-newly discovered evidence could not with reasonable diligence have-been discovered and produced by the defendant upon the former trial,, has been greatly relaxed by the courts, — especially in criminal cases. New trials are granted only in the interest of justice. And the question of whether or not the ends of justice demand a relaxation of the-rule in question was also a matter to be determined in the first instance by the trial court; and subject to review in this court only in case of abuse of discretion on part of that court. It may be observed that our law making newly discovered evidence a ground for a new trial in criminal cases reads as follows: . When new evidence is discovered material to the defense, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.” . . . Comp. Laws 1913, § 10917, subdiv. 7. The fundamental rule applicable to motions for a new trial on the ground of newly discovered evidence is that this is addressed to the sound judicial discretion of the trial court, and that its action thereon is conclusive on this court, unless it appears affirmatively that the discretion vested in the court below has been abused. Heyrock v. McKenzie, supra; State v. Albertson, 20 N. D. 512, 128 N. W. 1122; State v. Brandner, 21 N. D. 310, 130 N. W. 941; State v. Reilly, 25 N. D. 339, 376, 377, 141 N. W. 720; Hayne, New Trial & App. § 8. See also Aylmer v. Adams, 153 N. W. 419.
It was for the trial court to pass upon all questions presented by the motion for new trial, and determine whether the newly discovered evidence was material, and would be likely to produce a different result upon a retrial of the case, and also whether or not defendant could, or could not, by the exercise of reasonable diligence, have produced such evidence upon the former trial. The trial judge answered these questions adversely to the contentions of the appellant, and his finding is conclusive on this court, unless it can be said that in so. doing he has abused his discretion. Upon a careful consideration of all the affidavits submitted upon this motion, we are compelled to say that no such abuse is shown. There being no error justifying a reversal of the judgment or the order denying a new trial, they must be affirmed. It is so ordered.