¶1Appellant was convicted under an information charging him with being a jointist, and he has appealed.
¶2He complains that the information was drawn under an act which is unconstitutional, and that it fails to allege facts sufficient to charge a crime. This court has already considered the question of the constitutionality of the jointist and bootlegging act, and decided the question presented by the appellant adversely to his position: State v. Rousseau, 111 Wash. 533, 191 *346Pac. 634; State v. Burgess, 111 Wash. 537, 191 Pac. 635; State v. Hessel, 112 Wash. 53, 191 Pac. 637.
¶3It is suggested that the jointist act is unconstitutional for the reason that it conflicts with the eighteenth amendment to the Federal constitution. This contention has already been considered by this court in State v. Turner, 115 Wash. 170, 196 Pac. 638, and State v. Woods, ante p. 140, 198 Pac. 737. The question is therefore no longer an open one.
¶4It is finally claimed that there was misconduct of the court and jury, in that the jury were allowed to separate during a short recess taken in the trial, without the consent of the defendant. The affidavits upon which this matter was urged, on the motion for a new trial, are not attached to the statement of facts, and, indulging in the presumption which makes for the regularity of trials, the record is barren of any showing that the appellant at the time did not know of the separation, he must be held to have known of it, and to have made no objection thereto, and to have proceeded with the trial of the case. Under such circumstances he must be held to have waived the error. State v. Shuck, 38 Wash. 270, 80 Pac. 444.
¶5Parker, O. J., Bridges, Fullerton, and Holcomb, JJ., concur.