think their minds are made up and some little question comes up, they come to the conclusion then they ought to change it. If they keep working on the theory they are not going to change their minds, it is made up, of course they will not, but that's not the way for a jury to do, want to work at it with the possibility always in view that I may be wrong about this and I'll change if I am. . . . You think there is no question of fact the court can help you on by having it read? A. I don't think so. Court: Well, go back and go to work, gentlemen. The court will be here any time when you agree."

...

The jury returned later to have some of the testimony read. They retired again for deliberation and finally brought in a verdict of guilty.

We think it quite apparent that from the statements of the learned trial judge the jury must have concluded that he was convinced of the defendant's guilt and that as honest men it was their duty to so find. A portion of the remarks we have quoted was quite appropriate and calls for no criticism, but the statements we have italicized constitute, in our opinion, an infringement of the special prerogative of the jury. It was proper for the presiding judge to admonish the jury of their duty to consult together, to listen to argument, and to endeavor earnestly to reach an agreement, and, although of somewhat questionable propriety to remind the jury of the expense of a new trial, such remark could not justly be held sufficient ground for reversal, nor perhaps even for criticism; but to characterize the two dissentient jurors as contrary, and to declare that there should be no trouble about agreeing upon a case like this, and that it simply called for the sensible reasoning of men according to the evidence, transcends the proper limits of judicial discretion and authority. The contrary jurors were undoubtedly for acquittal. It is not likely that if the other ten had been opposed to conviction they would so readily have yielded to the persuasive suggestions of the trial court. Of course, these two jurors had the same legal and moral right to their opinion of the guilt of the defendant as had the other ten, and their attitude should not have been ascribed to obstinacy. That under our system, in the determination of the guilt or innocence of a defendant, the jury must be left free from coercion or influence of the trial judge, will not be gainsaid. This right and privilege accorded by the constitution to one charged with

crime is manifestly fundamental and vital. If serious infractions of it are to be tolerated, then trial by jury becomes a delusive formality.

The case here is controlled by the principle of the decision in People v. Kindleberger, 100 Cal. 367, [34 Pac. 852], and People v. Conboy, 15 Cal. App. 97, [113 Pac. 703]. In the former, the trial judge said to the jury: "In view of the testimony in this case the court is utterly at a loss to know why twelve honest men cannot agree.' And in the latter, the objectionable remark was: "Now, gentlemen, I think I have read to you about all the instructions you desire upon these points and I suggest to you that there is no reason why twelve honest, intelligent, reasonable men should not reach a conclusion in this case and I am surprised that you have not done so already."

The case at bar for the same reason is equally subject to animadversion and the only reasonable conclusion, as we conceive it, is that the jury were prejudicially influenced against the defendant. It may be said as to this, that the principle is thoroughly considered and the cases reviewed by Mr. Justice Kerrigan in the Conboy decision, supra, and therefore we need pursue the subject no further.

The other questions discussed will probably not arise again and we forego specific consideration thereof, but for the reason stated, we think the defendant did not have a fair trial, and the judgment and order are reversed.

Chipman, P. J., and Hart, J., concurred.

[Crim. No. 345. Third Appellate District.-September 9, 1916.] THE PEOPLE, Respondent, v. W. A. HOWARD, True Name, WALTER H. ALLEN, Appellant.

CRIMINAL LAW-EMBEZZLEMENT-LARCENY.-If one honestly receives goods upon trust, and afterward fraudulently converts them to his own use, he is guilty of embezzlement; but if he obtains possession fraudulently, with intent to convert the same to his own use, and the owner does not part with the title, the offense is larceny. ID.-WRONGFUL TAKING OF MONEY BY WIFE-HUSBAND AS AIDER AND ABETTOR-EVIDENCE-UNWARRANTED CONVICTION OF GRAND LAR

CENY.-The conviction of a married man of the crime of grand larceny on the theory that he aided and abetted his wife in the wrongful taking of money by her, cannot be sustained, in the absence of any evidence showing that the taking of the money was the result of a fraudulent and felonious design of the defendant and his wife conceived before she obtained employment in the commercial college from which the money was taken, and it is shown by the evidence presented that the money came into her control and care while employed in such college as a stenographer, and that among the duties assigned to her was that of selling small articles of merchandise, receiving the money therefor, and depositing the same in the cash register, to which she was given free access to make change and permission to handle the money therein.

ID. STATEMENT OF DIFFERENT OFFENSES-OMISSION TO CONCLUDE EACH COUNT WITH PHRASE "CONTRARY TO FORM OF STATUTE"-SUFFICIENCY OF INFORMATION.-An information in three counts, each stating a different offense, is not prejudicial to the defendant, because of the omission to conclude each count with the statement that the commission of the offense was "contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state," etc., where the information is ended with such statement.

ID. DIFFERENT OFFENSES-NUMBER OF PEREMPTORY CHALLENGES.Under an information charging more than one offense, the defendant is entitled to but ten peremptory challenges in all, and not ten as to each offense.

ID.-CHARGE OF DIFFERENT OFFENSES-ELECTION NOT REQUIRED.— Under an information charging more than one offense, the people are not required to make an election, before offering proof, upon which count they intend to rely.

APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. C. W. Norton, Judge.

The facts are stated in the opinion of the court.

Lynch & Cross, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

HART, J.-The defendant was convicted of the crime of grand larceny, and appeals from the judgment of conviction. and the order denying his motion for a new trial.

The information is in three counts, each stating a different offense, viz.: The first charging the larceny of $305 in money,

the second the embezzlement of said sum, and the third the receiving of said money knowing it to have been previously stolen.

The attack upon the verdict is upon numerous grounds, which, generally stated, are that the court erred in overruling the demurrer to the information, in disallowing certain voir dire questions by the defendant to a certain juror, in denying the challenge by the defendant of a certain venireman upon the ground of actual bias, in refusing to require the people to make an election of the particular count of the several set out in the information upon which they intended. to rely, in refusing to allow the defendant thirty peremptory challenges, the theory being that he was entitled to ten such challenges upon each of the offenses stated in the information, in its rulings upon questions involving the legal propriety of the admissibility of certain evidence, and in disallowing certain instructions preferred by the accused. It is further insisted that, if the defendant was guilty of any crime whatsoever, it was not that of grand larceny, of which the jury convicted him, but that of embezzlement. This last point necessarily involves, and its solution depends upon, the question whether the evidence supports the verdict.

Under the several heads above specified, many specific objections to the legal soundness of the result reached at the trial are here interposed and argued in the briefs. Such of these as we deem entitled to special notice and review we shall consider.

The facts, as gleaned from the evidence, may be summarized as follows: In the early part of the month of August, 1915, the defendant and his wife arrived at the city of Stockton and, under the name of Howard, took rooms at a house known as the "Adams Apartments." They were strangers in Stockton, and at said apartments represented themselves as being husband and wife. A few days thereafter they moved to a rooming-house in said city, known as the "McPhee Apartments," where they remained until their departure from Stockton, on the thirtieth day of said month of August. While stopping at the last-named apartments, and about the middle of the month named, "Mrs. Howard" secured employment as a stenographer with a commercial college in said city known as the Western School of Commerce. Said college was incorporated, and at the time of the

employment of Mrs. Howard, one John R. Humphreys was president of the corporation and principal of the school, and as such was authorized to employ such assistants as were found necessary to aid in carrying on the business of the institution. When she applied for employment she represented to Humphreys that her name was "Miss Helen Burns," and under that name she accepted the employment. "Mrs. Howard" worked at a desk located in the office of the sec retary of the corporation. At about the hour of 12 o'clock, noon, on the thirtieth day of August, 1915, she left the office of the secretary and did not return. A short time after her departure, and after the time at which she should have returned to the office and resume the discharge of her duties, it was discovered upon investigation that the sum of $305 was missing from the cash register which was kept in the office of the secretary.

It transpired that, on the day last mentioned, Howard and his wife met at a point on one of the streets of Stockton and hired a taxi-cab, in which they were driven to Lodi, a distance of a few miles north of Stockton. At Lodi, Mrs. Howard purchased some wearing apparel at one of the stores in said town and Howard, at another store, bought a suit of clothes and a suit case. The clothes worn by him to Lodi he left at the store at which he purchased and donned the new suit. Howard also went to the bank at Lodi and exchanged some gold for paper money. Within a brief time thereafter, Howard and his wife at Lodi boarded a northbound train and went to Sacramento, at which place they bought tickets for the east, and on the said thirtieth day of August together left for the east. They were later arrested in the east and returned to Stockton. While in the east and before their arrest, the defendant, whose true name is Walter Howard Allen, gave his name and registered at hotels variously as "Taylor," "Churchill" and "Howard."

There is, in the record, testimony from which the jury could justly have inferred, as perhaps they did conclude, that the defendant down to the day upon which he with his wife left Stockton, was wholly without financial means, with the exception of five dollars in gold from which he paid for some drinks at a bar for himself and one R. J. Richardson, who, with his wife, also occupied rooms at the McPhee Apart