This is an appeal from judgment and order denying defendant’s motion for a new trial.

*2 Defendant was accused by information with the crime of burglary; the conviction of a prior offense of burglary was also alleged. A jury trial resulted in a verdict of guilty. The prior conviction was admitted on arraignment.

It is contended on appeal that the evidence is insufficient to support the judgment; also that the failure of the court to instruct the jury that a verdict of guilty required a concurrence of all twelve members of the jury, was error.

The evidence reveals that on the night of July 16, 1945, about 11 p. m., two officers while cruising in an automobile saw defendant running down the street “in a peculiar manner.” Their suspicions aroused, they followed a short distance and finally drew up and stopped the car. One of the officers stepped,out of the car and informed defendant, “we are police officers.” Defendant immediately fled and while being pursued was seen by the officer to throw away some object which, when found after defendant’s capture, was the purse or handbag, and contents, belonging to the complaining witness, Juanita Jensen. Miss Jensen lived in a one-room apartment on the ground floor of an apartment building located about one block from where the defendant was first seen by the officers. On the same night at about the same time herein mentioned, the handbag had been stolen. It had been placed on the bed near a partially open window when Miss Jensen arrived home about 11 p. m. About five minutes thereafter, attracted by a noise, she entered the room, found the screen open, the window raised and the purse gone.

With regard to the return of the jury and recording of the verdict, the reporter’s transcript contains the following:

Manifestly, even though the failure to instruct on the matter in question were an oversight, a new trial would be necessary if such' error had been prejudicial. It is evident, however, that no prejudice resulted. It seems apparent from the above record that defendant’s counsel was the only one who noted the oversight and was aware of it before the jury retired. A reminder at that time would not have been unethical nor would it have been in violation of any duty resulting from the relation of attorney and client in a criminal action. The trial court had tendered a remedy; the offer was rejected. Having declined to poll the jury, the defendant cannot now be heard to complain. The motion for a new trial, in the circumstances, was properly denied.

The evidence supports the judgment and there being no prejudicial errors, the judgment and order are affirmed.

York, P. J., and White, J., concurred.

A petition for a rehearing was denied April 26, 1946, and appellant’s petition for a hearing by the Supreme Court was denied May 13, 1946.