1. In determining where the preponderance of evidence lies in a civil case the jury are authorized to consider the number of witnesses, though the preponderance is not necessarily with the greater number. Civil Code, § 5146. It will thus be seen that the number of witnesses has slight bearing upon the •question of preponderance even in a civil case; and hence it follows that in a criminal case, where the issue is not to be determined by the preponderance of the evidence, but the guilt of the •accused must be made to appear beyond a reasonable doubt, the number of witnesses that may be called is a circumstance at best .of very slight significance. It is therefore better, in the trial of a criminal case, in giving the jury the rules in reference to the credibility of witnesses, to make no reference to the rule laid down in the section of the code above cited. But where the jury have been fully and clearly instructed that a conviction will not be authorized unless the evidence is of such a character as to satisfy their minds, beyond a reasonable doubt, of the guilt of the accused, the fact that the judge, in giving them the different rules for determining the credibility of witnesses, states that they might look to the number of witnesses, although the number does not indicate where the truth is, will not be cause for a new trial.
2. The remarks of counsel for the State were not of such a character as to require the granting of a mistrial.
3, 4. The record does not disclose anything to indicate what *138was the character or credibility of the alleged newly discovered witnesses. Affidavits showing this are indispensable in applications for new trials upon the ground of newly discovered evidence. Civil Code, § 5481. In addition to this, the alleged newly discovered evidence is in part cumulative and in part impeaching; and nothing has been shown to' take the case out of the general rule, that in such cases the discretion • of the judge in refusing a new trial.will not be interfered with. The evidence authorized the verdict, and we find no error requiring a reversal of the judgment. Judgment affirmed.
