Jenkins

A jury found defendant guilty of violating Penal Code section 459 (burglary), and not guilty of violating Penal Code section 496 (receiving stolen prop erty), as charged in a two-count information. Defendant appeals from the judgment and order denying a new trial, contending (1) prejudicial error in the judge conversing with and instructing the jury out of court in the absence of defendant and his counsel, no record having been made of the conversation; and (2) insufficiency of the evidence.

(1) Was there prejudicial error %

The case was submitted to the jury at 11:52 a.m. A verdict was reached at 9:07 p.m. In the early afternoon the trial judge had an unreported conversation with the jury out of court without the knowledge or presence of defendant or his counsel. This was error in violation of Penal Code sections 1043 and 1138. Whether there is prejudicial error resulting in a miscarriage of justice must, in the last analysis, depend upon the particular facts of the individual case. (People v. Weatherford, 27 Cal.2d 401,418 [ 164 P.2d 753 ].)

What occurred in the present situation is set forth in affidavits of defendant’s attorney, the trial judge and the foreman of the jury.…