BRICKEN, J.
The defendant was convicted of grand larceny, and appeals. No exceptions are reserved to the rulings of the court on the evidence, nor was there exception to the oral charge.
The testimony elicited for the prosecution and for the defense made the case one for the jury. Charge 1, the affirmative charge, was therefore properly refused.
Charge 8, refused to the defendant, was a mere argument, and there was no error in its refusal.
The motion for new trial, based on newly discovered evidence, nowhere discloses that by due diligence this evidence could not have been produced upon the trial. In fact, one of the affidavits discloses that some of this evidence was known to an attorney of one of the defendants prior to the severance and separate trial of this defendant.
The court is of the opinion that the verdict is not so contrary to the evidence as to warrant its interference with the ruling of the court on the motion for new trial.
Affirmed.