Revenko

Appellant was charged with the crime of rape alleged to have been committed upon a girl twelve years of age, and upon trial was found guilty. Pursuant to the authority granted under section 264 of the Penal Code the jury recommended that he be punished by imprisonment in the state prison, and he was sentenced accordingly. The appeal is taken from the judgment of conviction and the order denying his motion for a new trial.

No briefs have been filed by either party to the appeal and only one point was urged by appellant as ground for re versal at the time the appeal was argued orally before this court. It was to the effect that an irregularity occurred after the jury had retired to the jury-room to deliberate upon its verdict, which amounted to a violation of section 1128 of the Penal Code. The point was raised by an affidavit made by appellant’s counsel and presented to the trial court at the time the motion for new trial was heard, in which it was averred in substance that he was advised by several members of the jury that while the jury was deliberating upon its verdict, and about the hour of 10:45 o’clock P. M., the bailiff of the court, who had been sworn to take charge of the…