of their plan to escape, as that plan is shown by their acts and conduct, but the evidence shows quite clearly that their plan contemplated the overcoming of Drewry and Kerr by such force and to such an extent as was necessary at the very place where they attacked them, and these men having been rendered powerless to resist them or impede their movements, their subsequent escape through the gates into the yard. Under such circumstances, Creeks would be equally guilty with Phelps of the murder of Drewry, even if he did not personally inflict any wound on him, for under the law the acts of Phelps in the matter were the acts of the defendant also. The verdict of the jury in this regard is not only sufficiently sustained by the evidence, but we do not see how any other verdict could have been given. (See also People v. Ford, 19 Cal. App. Dec. 332.)

4. To the claim that the statement or confession made by defendant very shortly after his recapture was improperly admitted in evidence, it is sufficient to note that the objections made to its introduction were withdrawn by his attorneys, and that it was received in evidence without objection on their part.

5. In view of what we have said as to the rules of law applicable to such a case as this, we find no prejudicial error in the matter of instructions of the court to the jury.

[7] It was proper to instruct the jury that any prisoner confined in the state prison for a term less than life who attempts to escape therefrom is guilty of a felony, to acquaint them with the fact that any conspiracy or combination including among its purposes the accomplishment of the escape of Phelps was a conspiracy for the accomplishment of an unlawful act. [8] The instruction that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in the crime, was, as we have seen, a correct statement of the law applicable to this case, as also was the instruction that one who aids, abets and assists a convict confined in the state prison for a term less than life to escape therefrom is guilty of a felony.

The following instruction was given:

[9] "If a convict is informed of an expected attempt to break or escape from a state prison to be made by a convict confined therein for a term less than life, and his help is sought by said convict so planning it, if he in good faith does not desire to assist therein, it is his duty to report the same to the proper officer of the prison. And if he fails to do so and willingly joins in and aids, abets and assists such escape he is responsible for all the consequences that follow said conspiracy."

This instruction is somewhat loosely drawn and we cannot commend it. The court should not have instructed the jury that it was the duty of a convict informed of a proposed attempt to escape, to report the same to the proper officers of the prison. No question relating to any moral obligation resting on defendant was involved in the issues being tried, and the defendant was violating no law in failing to give information of the proposed escape. But we do not see how, in view of the context, this

statement could have prejudiced defendant. It was immediately followed by the statement "And if he fails to do so, and willingly joins in and aids, abets, and assists such escape he is responsible", etc. This purported to define the only circumstances under which defendant could be held criminally liable under the facts stated in the instruction, whatever his failure to give such information to the officers. He must go further, and willingly join in, and aid, abet and assist, etc. It would be unreasonable to assume that any prejudice resulted to defendant from this instruction.

[10] The instruction stating substantially that if the jury were satisfied beyond a reasonable doubt by the evidence of certain specified things, the defendant must be held guilty of murder, even though he did not personally inflict the fatal wound, correctly stated the law. If, as suggested by counsel, the giving of this instruction "was about the same thing as telling the jury to convict the defendant of the crime charged," this is so only because the evidence so clearly shows the elements essential to conviction as to leave no reasonable doubt of their existence.

The court might well have omitted to read to the jury section 246, Penal Code, for it had nothing to do with the case. We are unable to see, however, how it could have misled the jury, or in any way prejudiced defendant's cause.

One or two other instructions complained of require no notice here, as they were unquestionably correct.

[11] Certain instructions requested by defendant were properly refused. The first referred to in his brief did not correctly state the law, inasmuch as it substantially involved the proposition that it was not a crime on the part of one confined in a state prison for life to aid and assist one confined therein for a term less than life, to escape or attempt to escape therefrom. [12] The second requested instruction referred to did not correctly state the law, inasmuch as it declared substantially that defendant could not be convicted of murder unless he actually struck the fatal blow that killed Drewry, or unless it was specifically agreed between Phelps and defendant, as a part of a conspiracy to escape "entered" into by them, that they would "kill and murder any one who interfered" with their escape. As we have seen, no such specific agreement to kill was essential to defendant's guilt. The same objection exists as to the third requested instruction referred to.

[13] 6. It is claimed that under the rulings of the trial court, defendant was compelled to be a witness against himself, in that on his cross-examination, he was examined, over his objection, as to matters about which he had not testified on his direct examination. On his direct examination he had testified that he was present at the conflict in the corridor, near the inside gate, saw part of the fight between Phelps and Captain Drewry, saw Phelps strike Drewry, did not participate "in any manner" in that fight, and did not have his hands on Drewry in any way; that at the end of that fight between Phelps and Drewry he picked up from the floor his own knife and a "gun", and that he had last seen this knife in his cell that same evening and had not brought it from there; that he left his cell that evening just ahead of

Phelps; that Phelps had his own knife in his hand when they came out of the cell. The whole purpose of his testimony on direct examination was to show that he was in no way a participant in the attack on Captain Drewry, and had absolutely nothing to do with it-that he was in fact an innocent spectator taking no part, so far as his testimony showed, in any attack on either Drewry or Kerr. He did not in his direct examination say anything about his attack on Kerr. The prosecution claimed, and there was considerable foundation for the claim, that not only was defendant a co-conspirator with Phelps in a plan to escape together, using such force as was necessary to accomplish their purpose, but also that in the attack made on the officers, having temporarily disposed of Kerr, he personally took part in the struggle of Phelps with Captain Drewry, who was a larger and stronger man than Phelps, and that with his own knife, already referred to, he inflicted the fatal wound found on the back of Captain Drewry's neck, below the skull.

On cross-examination defendant was asked among other things: "Well, you left the cell with Phelps with the intention of overcoming the guards and escaping from the jail, did you not" to which he answered "Yes Sir"; "In accordance with the agreement made by you and Phelps before leaving the cell, you struck Kerr", to which he answered "Yes Sir"; "Your object in striking Kerr was to overpower him and aid Phelps in getting out of the prison", to which the answer was, "That was the object under the circumstances".

We are at a loss to see why that was not proper cross-examination, in view of his testimony given on direct examination.

The well settled rule in this state as to cross-examination of a defendant is stated in People v. Gallagher, 100 Cal. 475. [14] While a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself, if he offer himself as a witness "he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief". (Sec. 1323, Pen. Code.) The statute places no limitation or restriction upon the extent or character of his cross-examination "as to all matters about which he was examined in chief", and upon these matters he may be cross-examined as fully as any other witness"Any question which would have the tendency to elicit from him the whole truth about any matter upon which he had been examined in chief, or which would explain, or qualify, or destroy the force of his direct testimony, whether it be to give the whole of a communication or transaction of which he had given only a part, or to show by his own admission that he had made contrary statements, or that his conduct had been inconsistent with the statements given in his direct testimony, and thus throw discredit upon them, would be legitimate cross-examination." Again, in People v. Dole, 122 Cal. 486, 491, it was said by the late Chief Justice Beatty, a majority of the court concurring in his views, that "any fact may be called out on cross-examination which a jury might deem inconsistent with the direct testimony of a witness, and a defendant testifying in his own behalf is in

In

this respect put upon the same plane with other witnesses". the light of these declarations, we are of the opinion that no error was committed in allowing this cross-examination. One of the matters regarding which defendant testified on his direct examination was the attack on Captain Drewry near the inside gate, and his own absolute lack of participation therein. The matters called for on cross-examination tended to show that the assault was in fact a joint assault by defendant and Phelps on both Kerr and Drewry, undertaken and carried into execution by them, for the purpose of accomplishing their escape from the prison, and they were of such a nature that the jury might well deem them inconsistent with the direct testimony of the witness as to the part played by him in the encounter near the inside gate, and, under the circumstances shown, even as to his statement to the effect that he did not personally assault Captain Drewry. It was at least very unlikely that in such a joint assault made under such circumstances as were disclosed by the cross-examination, the defendant, armed with a knife as the jury had the right to conclude from the evidence he was, refrained from assisting Phelps in his struggle with Captain Drewry, when he had the opportunity to do so. The cross-examination thus tended to discredit and destroy the force of the testimony given by defendant on his direct examination as to this very matter.

The question asked defendant on cross-examination "You knew that Phelps at the time was serving a term in the state prison of less than life" to which he answered "Yes Sir", was probably not proper cross-examination. However, the allowance of this question was not error sufficiently grave to warrant a reversal. Such knowledge on the part of the defendant was not essential to his guilt as a principal in the matter of the escape or attempted escape of Phelps, or to his guilt under section 109, Penal Code, in the matter of wilfully assisting "any prisoner confined in any prison . . . to escape", and this being so we do not see how it could have otherwise prejudicially affected his cause. We find no other matters requiring notice.

The judgment and order denying a new trial are affirmed.
ANGELLOTTI, C. J.

We concur:

SHAW, J.
LORIGAN, J.

MELVIN, J.

SLOSS, J.

LAWLOR, J.

S. F. No. 6420.

Department Two. June 8, 1915. *EDWARD H. HORTON, Plaintiff and Respondent, v. REMILLARD BRICK COMPANY (a Corporation), Defendant and Appellant.

[1] CONTRACT-PERSONAL Services—CompENSATION IN ADDITION TO MONTHLY SALARY-BONUS UPON YEARLY PROFITS-TIME OF ENJOYMENT CONSTRUCTION OF CONTRACT.-A contract of personal service for the period of ten years which provides that the person employed is to receive a bonus payable "forthwith" on the yearly profits of the business in addition to a fixed monthly salary, in the event of the annual net profits of the capital invested equalled a stated percentage, while entire in respect to the term of the service, does not contemplate that the bonus is not to be enjoyed until the end of the ten years, nor to be based upon a full accounting of profits and losses as they might appear at the end of the term, nor at the termination of such services at a period less than ten years, but that such bonus should be paid at the end of any year when earned.

[2] ID.-ACTION TO RECOVER BONUS-BASIS OF YEARLY PROFITSINVENTORY OF DEFEDNANT'S PROPERTY-OMISSION OF ALLOWANCE FOR DEPRECIATION OF PLANT AND EQUIPMENT AGREEMENT OF PARTIESCUSTOM-INSUFFICIENCY OF EVIDENCE. It is held in this action to recover upon such a contract a certain share of the net profits earned by the defendant for a certain year, that the evidence was such as left the trial court at liberty to reject the claim of the defendant that there was an agreement between the defendant and the plaintiff that in making up the annual inventory of the defendant's property an allowance should be made for depreciation of plant and equipment, and also, that there was no evidence of a custom as to depreciating inventories from which the court as matter of law should have found had become a part of the contract.

[3] ID. REHEARING OF APPEAL-NATURE OF PROFITS-ESTIMATED PROFITS-APPROVAL OF OPINION OF DISTRICT COURT OF APPEAL.--It is held on the hearing of this appeal after decision in the district court of appeal, which hearing was granted for the purpose of further considering the single question as to whether under the terms of the contract between the parties the profits were to be actual profits or estimated profits, that the conclusion of the district court of appeal that the parties agreed to an annual estimate of profits was correct, and that the entire opinion (19 Cal. App. Dec. 271) is adopted as the opinion of the supreme court.

Appeal from the Superior Court of Alameda County-William H. Waste, Judge.

For Appellant-Sullivan & Sullivan and Theo J. Roche.
For Respondent-Wright & Wright & Stetson.

BY THE COURT.

Upon consideration of the petition for the hearing of this cause before this court, after decision in the district court of appeal, this court, while well satisfied with the soundness of the reasoning and conclusions reached by the court of appeal, in all other respects, considered one question of sufficient gravity to justify further consideration of it here. That question was whether under the terms of the contract between Horton and the defendant the profits were to be the actual profits, or whether by convention and agreement it was understood that the profits should be estimated profits. The point becomes one of great importance in the case because it was shown that, while in the statement estimating the profits the bricks of defendant carried

*On hearing after judgment in District Court of Appeal, Third District (19 Cal. App. Dec. 271).