The first and second assignments of errors are of the same nature. It is claimed that in recalling the jury into the box, for instructions by the court, and in instructing them, without first calling over their names ; and in receiving their verdict and dicharging them, without calling their names, the district court erred. The provision of the statute requiring the names of the jurors to be called, is directory; and a failure on the part of the court to observe it, is not such an error as to call for the reversal of the judgment, unless it is made to appear that by such failure, some prejudice has resulted to the defendant.
The third error assigned, was the overruling the motion for a new trial. The first ground urged for the new trial, is the same as that contained in the first and second assignments of errors, and may be considered as sufficiently disposed of by the remarks already made.
*258The second ground is, that the verdict is contrary to the law and the evidence. No part of the evidence is contained in the record, and we are unable to say that the court erred in overruling the motion, for the cause- alleged.
The third ground is, that the court charged the jury upon the facts. To this, it must be replied, that the instructions given, are not embodied in the record, and no exception was taken to the charge at the time it was given.
The fourth ground urged is newly discovered evidence, material to the defense. As the evidence on which the defendant was convicted is not set out in the record, we must assume that it was sufficient to establish in the minds of the jury the fact that the defendant had committed the offense with which he was charged. The offense defined by the statute is, the “ falsely marking any cask, package, box, or bale,, as to quality or quantity, with intent to defraud.” The defendant is charged with having falsely marked and branded .sixty sacks containing wheat flour, with the brand and mark “ 98 lbs., superfine,” with intent to defraud 11. G-. Staples and E. E. Winslow. The proof of the defendant having so falsely marked the said sacks, or any of them, with intent to defraud, was sufficient to constitute the offense, and to sustain a verdict of guilty against him. It was not necessary for the state to prove, in addition, the further averment of the indictment, that “ the said sacks of flour, so marked,” &c., “ he, the said Burge, then and there sold and delivered to said II. G. Staples and E. F. Winslow, as and for sixty sacks of flour of ninety-eight pounds, of superfine flour each, whereas,” &G.
The newly discovered evidence would only have tended to establish the fact, that a portion of the sacks contained more than ninety-eight pounds of flour; and the further fact, that they were not sold absolutely to the said Staples & Winslow. We do not see that these facts, if proved, could have in any manner changed the result. The defendant was properly convicted, if a portion of the sacks were falsely marked, with intent to deceive, &c., without reference to *259the fact whether they were absolutely sold to Staples & Winslow or not. This conclusion renders it unnecessary for us to inquire whether the defendant might not have produced this alleged newly discovered evidence on the trial, by the exercise of proper diligence.
As it does not appear to us that the district court has improperly exercised the discretion vested in it, in overruling the motion for a new trial, the judgment must be affirmed.
• The argument cf counsel for the defendant, has been chiefly devoted to the consideration of the sufficiency of the indictment, and to other questions either not made in the court below, or not saved by bill of exceptions. There was no demurrer to, or motion to set aside the indictment; nor any motion in arrest of judgment. The questions argued by the counsel do not, therefore, properly arise in the cause.
Judgment affirmed.