Orchard

Defendant appeals from a judgment entered upon a jury verdict convicting him of attempted burglary. Defendant also purports to appeal from an order denying his motion for new trial, but that order is nonappealable under Penal Code section 1237.

Since the sufficiency of the evidence, though predominantly circumstantial, is not questioned, it may briefly be summarized by stating that shortly before 2 a.m. on March 18, 1968, Marin County law enforcement officials discovered appellant and his vehicle in the immediate vicinity of a roadside restaurant. A screen on a side window of the restaurant was found slit, a path found beneath the window appeared fresh, and dark debris on the blade of a knife found in appellant’s pocket appeared similar to debris on the screen.

Defendant urges a reversal of the judgment based upon the following contentions:

Juror Misconduct

Two of the grounds supporting appellant’s motion for new trial were that “the jury has been guilty of misconduct by which a fair and due consideration of the case has been prevented” and that “the verdict was decided by means other than a fair expression of opinion on the part of all the jurors and decided by lot.”…