The defendant was convicted of rape, without capital punishment, and was sentenced to the penitentiary for life.
His complaint is that, although the prosecution was for a capital offense, the jury were allowed to separate. Separation of the jury must be availed of before verdict, unless knowledge of it came to the defendant or his counsel only after verdict. In the instant case the irregularity was urged 'for the first time after verdict by motion for a new trial; and defendant has not shown that the knowledge of it came to him or to his counsel only after verdict. The burden was on him to do so. State v. Gianfala, 113 La. 479, 37 South. 30.
Judgment affirmed.