its statement to the jury, which is objected to by the defendant, the court merely performed its duty as prescribed by this section of the Penal Code. By its reference to the evidence in this statement the court did not invade the rights of the jury, nor would the jury, in our opinion, be likely to draw any inference therefrom unfavorable to the defendant. fendant apparently overlooks the fact, estab-, warrant a conviction. Pen. Code, § 1118. In lished at the trial, that after his arrest he escaped from the officers. Flight of a defendant, under the circumstances proven in this case, is always a circumstance to be taken into consideration by the jury, with the other facts proven in the case, in determining the guilt or innocence of a defendant. We think that there can be no question that evidence that the stolen property was found in the possession of the defendant shortly after the same had been stolen, coupled with evidence of the flight of the defendant after his arrest, was sufficient to justify the jury in finding a verdict of guilty. People v. St. Clair, 5 | Cal. Unrep. 294, 44 Pac. 234; People v. Cox, 29 Cal. App. 419, 155 Pac. 1010; People v. Gill, 45 Cal. 285; People v. Vidal, 121 Cal. 221, 53 Pac. 558; People v. Cole, 141 Cal. 88, 74 Pac. 547. Furthermore, the defendant gave a false account of the manner in which he had acquired possession of said property. This was also a circumstance which could be taken into consideration by the jury in determining his guilt, and, taken in connection with proof of his possession of the stolen property, was sufficient to justify a verdict of guilty. People v. Cole, supra. [2] The defendant takes exception to certain language used by the court just prior to the argument of the case before the jury as follows: [3] Defendant further complains that the court, by advising the jury to acquit the defendant of the burglary charges, must have believed that the defendant did not take the goods from the house of Ginder, the complaining witness, and that, unless he did take the goods from Ginder's house, he would not be guilty of larceny. We are not advised of the reasons upon which the court based its instruction to advise the jury to acquit the defendant upon the burglary charges. Neither are those reasons essential to the decision of this appeal. The court might have erred in so advising the jury, but, if so, its action was favorable to the defendant, and he cannot complain. There was no error on the part of the court upon the evidence before it in submitting to the jury the charge of grand larceny, and that is the only question that concerns us at this time. [4, 5] The contention of defendant that the court erred in refusing to direct the prosecution to elect between the different charges set · forth in the information is without merit. Pen. Code, § 954. Nor was it error on the part of the court, of which the defendant can complain, to receive the verdict finding the defendant guilty of larceny, and thereafter dismiss the burglary charges. The same result was obtained, so far as the burglary charges were concerned, as if the jury had followed the advice of the court and acquit "I want to say to you that the court has considered the evidence in this case, and, in view of the information and commitment and evidence in the case, has decided to advise the jury to render a verdict of not guilty upon count No. 1 and upon count No. 3 of the information (being the counts charging burglary). * You will be advised to consider only the question of whether the defendant is guilty or not guilty of the crime of larceny as charged in count 2 of the complaint. I make that state-ted the defendant on these charges. ment at this time in order that you may understand why counsel do not argue that phase of the case." [6] The only remaining question to be considered on this appeal is the objection made by the defendant to the remarks of the deputy district attorney in his argument to the jury. As we have before noted, the defendant did not take the stand at the trial. In his argument before the jury the deputy district attorney conducting the prosecution made the following statement: "I am not allowed to comment on the fact that this defendant did not take the stand, and I do not so comment―." Upon the objection of the defendant the court instructed the jury to disregard this remark of the prosecuting of Defendant contends that the court by the above statement invaded the rights of the jury by intimating to them that, while, in the opinion of the court, the evidence was not suflicient to justify the submission to them of the charges of burglary, yet it was sufficient to warrant the consideration by the jury of the charge of grand larceny. The only statement made by the court regarding the evidence it will be observed, was made in connection with his statement to the jury that he would advise them to render a verdict of ac-ficer. Whereupon the latter, continuing his quittal upon the two burglary charges. This argument to the jury, stated, "I am merely was followed by a further statement of the stating a fact, and it is a fact-" The decourt that under the advice of the court they fendant again objected to the remarks of the would only consider the question of defend-attorney, and the court sustained the objec ant's guilt upon the charge of grand larceny. tion, and admonished him not to refer to the The law makes it the duty of the court to ad-subject again. Defendant now assigns this vise the jury to acquit the defendant, if, at any time after the evidence on either side is closed, it deems the evidence insufficient to conduct of the deputy district attorney as error prejudicial to his rights. There can be no question that these remarks of the prose (225 P.) cuting officer were in direct violation of the express mandate of section 1323 of the Penal Code. No prosecutor in his zeal to secure a conviction should allow himself to so far forget his duty, both to the defendant as well as to the public, as to transgress the plain provisions of this statute upon this subject. While the courts of this state have uniformly held such improper conduct on the part of the prosecuting officer to be error, they have not in all cases held it to be such error as to entitle defendant to a reversal of the judgment. A recent case decided by the Supreme Court lays down the rule as follows: "It has been the disposition of this court where timely objection was not made or where the court has by appropriate instructions to the jury withdrawn such improper comment from their consideration to deny a reversal, if the evidence in the case was such as to clearly support a conviction." People v. Mayen, 188 Cal. 237, 259, 205 Pac, 435, 444 (24 L. R. A. 1383). In the present case the court promptly sustained the defendant's objection to the improper remarks, instructed the jury to disregard them, and admonished the attorney not to repeat the offense. The defendant therefore was not prejudiced by such remarks, if the evidence in the case showed clearly that he was guilty of the crime charged. We have already held that the evidence was sufficient to sustain the judgment, but it does not necessarily follow therefrom that the evidence was so conclusive against the defendant that his rights may not have been prejudiced by the improper conduct of the prosecuting officer. The evidence against the defendant, as before referred to, showed that the stolen property was found in his possession some two or three days after it had been stolen from the owner, at which time he stated to the officers that he had bought it ten days before from a man by the name of Tex; after his arrest, and while the officers were conducting him to an automobile, he escaped from them; they fired three shots at him in an endeavor to stop his flight; the shots missed him, although fired from a relatively short distance from him, and he made his escape, and was not recaptured until some months thereafter. It seems incredible to us that an innocent man would have risked his life in an endeavor to escape from officers attempting to arrest him. Evidently the defendant. after being caught with the stolen property in his possession, and being unable 225 P.-49 to deceive the officers by his statement that he had purchased it, rather than submit to arrest, trial, and punishment, determined to escape, even at the risk of being shot down by the officers. We believe that any reasonable jury, in viewing the evidence in this case, would have found the defendant guilty of the charge upon which he was tried. We feel that, had the prosecuting officer refrained from the improper comment complained of, the jury would have returned a verdict of guilty against the defendant. Quoting further from the case of People v. Mayen, supra, page 259 (205 Pac. 444) our views are aptly expressed in the following language: "The conduct of the district attorney was clearly error, and would demand a reversal of the verdict,* * if it appeared that any miscarriage of justice had resulted. Under the testimony presented to the jury we fail to see how it could have avoided a verdict of conviction. The evidence against the defendant conclusive and uncontradicted. was * While in no manner justifying the improper comments of the district attorney, we think it is a case for the application of section 41⁄2 of article 6 of the constitution." [7] The deputy district attorney, in his opening argument to the jury, also made the following statement: "There is evidence here also of the kind of a man this defendant is; there is evidence here that he goes to a pawnshop; that he there sells other goods which are stolen; that he there signs another name not his own." An objection was made by the defendant to this statement, but it was overruled by the court. The prosecuting officer in this statement evidently referred to the goods missed by Ellis Gray from his house, and which the defendant sold to a second-hand dealer a few days thereafter. The court had already advised the jury to acquit the defendant on this charge. The jury, however, were not bound by this advice. In view of the court's instruction, the better practice, we apprehend, would have been for counsel to have refrained from discussing any of the facts involved in this charge, but we are not advised of any authority that prohibits him from so doing. The judgment and order denying motion for new trial are affirmed. We concur: CONREY, P. J.; HOUSER, J. LINCOLN v. HOGGARD et al. (Civ. 3983.) (District Court of Appeal, Second District, Division 1, California. March 13, 1924.) 1. Landlord and tenant 326(1)—Provision for dividing produce held applicable to crop growing at execution of lease. Provision of lease, without exception, that parties shall share equally in everything produced or raised on the premises, held to apply to crop growing when lease was executed. 2. Trial 404(1)-Finding of what was agreed held to impliedly exclude other alleged inconsistent agreement. Finding as to what was agreed between the parties, when lease was canceled, by implication, held to exclude an alleged agreement inconsistent therewith and with the provisions of the lease relative to cancellation. 3. Appeal and error 1071 (6)-Failure to make finding, which it is apparent would have been adverse to party complaining harmless. Omission to make finding, which, it is apparent from findings made, would have been adverse to party complaining, is harmless. 4. Trial 397 (2)-Omission of finding held not to make decision against law or to amount to mistrial. Findings made being ample to dispose of the material issues, and to uphold the judgment, omission of other findings, which, if made, would not invalidate the judgment, does not make the decision against law or amount to a mistrial. The lease also contained, among other provisions, the following: "It is agreed between the parties hereto that the lessor shall share 50 per cent. in everything produced or raised on said leased property, and lessee shall share 50 per cent. in everything produced or raised on said leased property during the continuance of said lease." The property described in the lease was sold shortly after plaintiff went into possession thereof; and thereupon, according to the findings of the court, "plaintiff and said defendant agreed to divide certain crops on said premises according to the terms of said contract, and plaintiff agreed to surrender possession of said premises and to cancel said contract according to its terms." The crops were divided in accordance with the said agreement of the parties, but defendant failed to pay to plaintiff the sum of $500, which plaintiff claimed to be due to him under the terms of the lease. From a judgment in favor of plaintiff for the sum of $500 defendant appeals to this court. [1] It is contended that, because the crop was growing on the land at the time the lease was executed, plaintiff was not entitled to 50 per cent. thereof; but the plain language of the lease to which we have adverted will bear no such interpretation. The findings of the court, which are supported by the evidence, are that the parties "agreed to cancel said written contract according to its terms, and agreed to allow the lessee (plaintiff herein) to harvest his crops; that said crops were Appeal from Superior Court, Los Angeles thereafter harvested; that, after the harvestCounty; John M. York, Judge. Action by E. M Lincoln against Jennie M. Hoggard and others. Judgment for plaintiff, and defendants appeal. Affirmed. Milton K. Young, Lyndol L. Young, William K. Young, and Forrest F. Murray, all of Los Angeles, for appellants. Frank C. Prescott and Frank G. Falloon, both of Los Angeles, for respondent. HOUSER, J. Plaintiff brought an action against defendant for breach of a contract, arising out of an alleged failure to keep a certain covenant in a lease between them, as follows: "If the lessor wishes to cancel the lease and gain possession of the property, the lessee agrees to accept $3 per acre for such land as he has plowed and seeded or $2.50 per acre for land that is plowed but not seeded. At any time up to and within 60 days of the time of harvest. Within 60 days of time of harvest the lessee will be allowed to harvest his crop. After harvesting of the crop and up into the time of the spring or fall plowing the lessee will surrender lease and give possession upon payment to him of $500 in cash, plus the price per acre of any land plowed as per above schedule." ing of the crops. and before the time of the spring or fall plowing, the lessee (plaintiff herein) surrendered his lease and gave up possession of the demised premises in accord ance with the terms of said lease." Appellant also urges the point that the court failed to find upon an issue raised by the answer to the effect that the one-half of the crop was given and transferred by defendants unto plaintiff as full consideration and compensation for the surrender of said premises. But the lease itself provides for just such a division as was made between the parties; and the court found on substantial, although conflicting, evidence that the parties to the lease agreed to cancel the lease "ac cording to its terms, and agreed to allow the lessee (plaintiff herein) to harvest his crops; that said crops were thereafter harvested"; and that they agreed to divide the crops "aecording to the terms of said contract"; that "plaintiff agreed to surrender possession of said premises and to cancel said contract according to its terms." [2, 3] The finding of the court as to what was the agreement between the parties at the time the lease was canceled is a complete statement as to what took place; every other thing is presumed to be excluded. The imFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) Judgment for defendant, plication is that the allegation contained in, tral California. Frank L. Simons and Edward Schary, both of Fresno, for appellants. Harris & Hayhurst, of Fresno, and Alfred C. Skaife, of San Francisco, for respondent. will not constitute an error sufficient to au thorize a reversal of the judgment. To the same effect see Southern Pacific R. R. Co. v. Whitaker, 109 Cal. 274, 41 Pac. 1083; Reed v. Johnson, 127 Cal. 541, 59 Pac. 986, and cases there cited; Gerth v. Gerth, 7 Cal. App. 737, 95 Pac. 904, and cases cited; Furlong v. White, 51 Cal. App. 272, 196 Pac. 903; U. S. Trading Corporation v. Newmark Grain Co., 56 Cal. App. 191, 205 Pac. 29. [4] The findings, which were ample to dispose of the material issues in the case, are sufficient to uphold the judgment; and the failure to make other findings upon other issues which, if made, would not invalidate the judgment does not make the decision against law, nor amount to a mistrial. Sharp v. Pitman, 166 Cal. 505, 137 Pac. 234. The judgment is affirmed. We concur: CONREY, P. J.; CURTIS, J. HELLMUTH et al. v. BANK & TRUST CO. (District Court of Appeal, Third District, 1. Banks and banking 154(8)-Finding as to amount of deposit held supported by evidence. In action for deposit, evidence held sufficient to sustain finding that plaintiff, claiming to have deposited $935 on certain date, deposited only $35. HART, J. The plaintiffs are husband and wife. In the month of December, 1915, the deposit account with the savings department plaintiff Mary M. Hellmuth opened a savings of the defendant, and continuously thereafter, and until the 23d day of April, 1920, the time of the filing of the complaint herein, carried and maintained said savings account therein. of the account, issued and delivered to said The defendant, upon the opening plaintiff a savings bank book, in which the amounts of such deposits as were made by her in said account from time to time from December, 1915, to. January 2, 1920, were duly noted. On the last-named date the said plaintiff appeared at the bank and deposited in her savings account a sum of money. The controversy between the parties is as to the amount of the deposit made on said 2d day of January. The complaint alleges that on the 2d day of January, 1920, the plaintiff Mary M. Hellmuth had to her credit in the savings department of defendant the sum of $2,000.01; that she thereafter made demand in writing on the defendant to pay said sum to her, and that her account in said bank be closed; that the defendant then refused and still refuses and ever since said demand was made has refused to pay her said sum of money and to accept her order for the withdrawal thereof and to close her account in said bank. The answer admits all of the allegations of the complaint, except the allegation as to the amount of money which the said plaintiff had on deposit in the defendant bank at the time this action was instituted, and as to this it is alleged that said plaintiff, on the said 2d day of January, 1920, had on deposit with defendant the sum of $1,100.01 only, and that defendant was indebted to her on said date by reason of said deposit or savings account in no greater sum than that last named; that of the said sum of $1,100.01 so on deposit with defendant, the sum of $35, and no greater sum, was deposited by Mrs. Hellmuth on the 2d day of January, 1920; that after said last-mentioned deposit of $35 was made, as alleged, some person other than defendant or any of its agents or employees, and without the knowledge or consent of the defendant "did willfully and fraudulently, and with the intention of defrauding and cheating this defendant, enter in said savAppeal from Superior Court, Fresno Coun- ings bank book in front of and near said recty; J. E. Woolley, Judge. ord entry therein of said deposit of $35 above mentioned so made by the said employee of said bank who received said deposit of $35 a 2. Appeal and error 1011(1)-Rule as to noninterference with findings on substantially conflicting evidence applies to expert or opinion testimony. Rule that reviewing courts will not interfere with trial court's findings of fact, where there is substantial conflict in evidence, is binding as to expert or opinion testimony, probative value of which is for trial judge. Action by Mary M. Hellmuth and husband against the Bank & Trust Company of Cen For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes figure 9 in front of and near the said entry | close, the deposit and the total of the account of $35 so as to make said deposit and the would be transferred to the ledger cards. record thereof in said savings bank book Crippen testified that that course or custom in appear to be $935 instead of $35," etc. receiving savings deposits was invariably followed by him. The findings are in accord with the claims of the answer, and judgment passed for defendant accordingly. The appeal is by the plaintiffs from said judgment. The single question to be determined here is whether the finding that the plaintiff did not deposit the sum of $935 in the savings department of the defendant on the 2d day of January, 1920, but on said date deposited the sum of $35 only, derives sufficient support from the evidence. W. W. Parsons was, on the 2d day of January, 1920, and had been for some years prior thereto, the manager of the defendant's savings department, and as such exercised superior authority in said department over Crippen and other clerks and employees in that department. At some hour of the afternoon of said January 2d Crippen, assisted by Parsons, commenced posting the "individual ledger" that is, they were jointly engaged in transferring to the ledger the deposits made by the different depositors on that day. Parsons, as he testified, "happened to post that particular deposit (Hellmuth deposit) to the individual ledger," following, of course, the deposit slip or tag on which said deposit was noted by Crippen when receiving the money. It was then that the discrepancy in the Hellmuth account was discovered by Parsons, who thereupon, addressing Crippen, said, "Roy, I guess you made a bull in this account. You have added the '35' to the '65' and carried your '1' over to your thousandths." Crippen replied, "By Jove, I guess I did." The account, as transferred to the ledger, was corrected or inserted in said book upon the basis of a deposit of $35 on the said 2d day of January. Assuming that the same At the time the deposit in dispute was made Mrs. Hellmuth had to her credit in the savings department of the defendant the sum of $1,065.01. If, therefore, she deposited on the 2d day of January, 1920, the sum of $935, then, manifestly, she had to her credit on said day, after said deposit, the sum of $2,000.01. If, on the other hand, her deposit on said day amounted to the sum of $35 only, then, quite clearly, she had to her credit in the bank, after said deposit, the sum of $1,100.01 only. The receiving teller of defendant, one Roy D. Crippen, who received the deposit from Mrs. Hellmuth on the 2d day of January, 1920, testified that he had no distinct independent recollection of the circumstance of the deposit made by Mrs. Hellmuth on the day mentioned. He explained, though, that the 2d day of January having imme-error had been made in the passbook, Pardiately succeeded a holiday, on which no busi- sons and Crippen decided to call the attenness was transacted by the defendant, an tion of Mrs. Hellmuth thereto, but concluded unusually large number of persons were in that the matter might well be allowed to rethe bank that day and transacted business main in abeyance until that lady next called with the savings department, and that that at the bank. A few days thereafter-the exfact accounted for his inability to recall the act date was not shown-Mrs. Hellmuth apparticular transaction in question. He fur-peared in the savings department of the dether explained that the customary method in fendant, and Crippen told her of the error vogue in said bank in the matter of han- that had been made in her account. She indling savings deposits made therein was assisted that she had deposited the sum of $935 follows: That the customer would present on the 2d day of January, 1920, and handed his passbook at one of two wickets maintained on the bank counter, together with the amount he desired to deposit; that the receiving teller would thereupon count the money, and, while the money still remained on the counter, would enter the amount thereof in the passbook, and then add said amount to the balance or total of the deposits which had therefore been entered therein, thereby showing the total of the deposits made up to and including that date. After this part of the transaction was completed, the teller would then, among other things, note the amount deposited and the total amount of the account on a deposit tag, place the tag on a spindle which was used for that purpose by all the receiving tellers in the savings department, deposit the money received in a drawer, used in common by all the tellers for that purpose, and later in the day, generally when the day's business was near its her passbook to Crippen to show that she had. Crippen, upon examining the book, found to his great amazement, so he testified, that the book contained an entry of the sum of $935 as the deposit made on said date. As he supposed he had done, he had noted in the passbook as the balance of the account after the deposit in dispute was entered the sum of $2,000.01, which sum, as we have seen, would represent the correct balance, if the deposit in question had actually amounted to the sum of $935. Crippen, while admitting that the figures $2,000.01 as representing the balance in the passbook had been written therein by him, positively asserted that it was erroneously done, and, furthermore, that the figure "9" before and next to the figures "35" in the passbook was not written by him, but had been placed there by some other person; that said numeral "9" was not in his handwriting. Parsons, before whom Mrs. Hell |