Opinion op the Court by

The fact that Ghent, one of the jury, was one of the command of which the appellee was acting as Colonel at the time the mnle is alleged to have been taken from the appellant was not, in our opinion, a sufficient reason for granting a new trial, and as the application for a new trial, so far as it was based on the ground of newly discovered testimony, material for the appellant was not sustained by the affidavits of others than the appellant, the court was mot authorized to grant a new trial on that ground.

. The instructions are not copied in the record, and there is nothing before us to show that the court restricted the jury. As it was the province of the jury to decide upon the facts of the case, and the evidence does not seem to so preponderate against the verdict as to show the jury to have, been controlled by passion or prejudice, we do not feel authorized to disturb their verdict, on the ground that it was not sustained by the evidence.

Wherefore, perceiving no reasonable error in the judgment, the same is affirmed.