I concur with the result herein solely under the compulsion of the decision of the Supreme Court in People v. Britton (1935) 4 Cal.2d 622 [52 P.2d 217, 102 A.L.R. 1065], by which we are bound. (Weil v. Weil (1951) 37 Cal.2d 770, 776 [236 P.2d 159].)
*411If we were not limited by that decision and were free to approach the problem as one of first impression, I would prefer to apply the same rule that is applicable in other cases of jury misconduct under Penal Code section 1181, subdivision 3; that rule is that jury misconduct raises a presumption of prejudice which may be.rebutted by proof that the misconduct did not in fact work to the defendant’s detriment and that he suffered no prejudice by reason thereof. (See dissenting opinion in People v. Britton, 4 Cal.2d 622, commencing at p. 623 [52 Cal.Rptr. 217, 102 A.L.R. 1065]; and also see In re Winchester (1960) 53 Cal.2d 528, 534-535 [2 Cal.Rptr. 296, 348 P.2d 904]; People v. Cord (1910) 157 Cal. 562, 571 [108 P. 511]; People v. Leary (1895) 105 Cal. 486, 491-494 [39 P. 24].)
I perceive no rational reason why a per se reversal rule should be applied in the factual context of the case at bench which on legal principle is indistinguishable from other situations involving jury misconduct.
Appellant’s petition for a hearing by the Supreme Court was denied February 21, 1974.