On Dеcember 29, 1904, a number of prisoners, including the defendant, incarcerated in the state prison at Folsom, were engaged at work at a rock crusher operated at the prison under charge of R. J. Murphy, captain of the guard, and C. H. Jolly, his lieutenant. A conspiracy had been entered into between some of these prisoners to attempt to escape, and about 3 o’clock of the day mentioned those involved in it simultaneously made an attaсk on Elurphy and Jolly. Most of the prisoners were armed with rude knives fashioned surreptitiously out of iron or steel implements used *168 about the quarry. The attack on Murphy was led by a prisoner named Finley, who assaulted him with a knife, knocked him down, and stabbed him several times in the shoulder. He was then raised to his feet and Finley and another of the prisoners named Hill grasped him by either arm and with knives drawn, and aided and accompanied by others of the prisoners, including the defendant, proceeded to push Murphy in front of them across a bridge towards the railroad track by which they expected to escape. The defendant was close behind Murphy and as Finley and Hill pushed or dragged the latter along the defendant repeatedly struck him over the head with a blacksmith’s chisel with which he was armed. At the time that Murphy was being attacked, another attack was being made on Jolly by Morales, Quijada, and other prisoners in the conspiracy. The attack on Jolly was likewise made with knives and he was overpowered and hurried toward the point where Murphy and his captors were attempting to cross the bridge. The obvious purpose of the prisoners in taking Murphy and Jolly with them after assaulting and overpowering them was the hope that the other guards would not fire on them for fear of injuring Murphy and Jolly. This hope was, however, delusive, because as the prisoners with Murphy and Jolly came in sight of the other prison guards, Jolly called on them to fire, which they did. Murphy and Jolly were both severely wounded, the prisoners Hill, Morales, and Quinlan killed, the other prisoners wounded and the escape frustrated. Defendant at the time the assault by his associates and himself was made' upon Murphy was undergoing a life sentence in the state prison at Folsom.
It is provided by section 246 of the Penal Code that “every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable with death.”
The defendant was indicted under this section, tried, found guilty, and sentence of death imposed upon him. He appeals from the judgment and from an order denying his motion for a new trial.
No question is made upon this appeal as to the sufficiency of the evidence to sustain the verdict. It is insisted, however, *169 that the sеction of the code under which appellant was indicted and convicted is unconstitutional, and if not, that, nevertheless, the judgment must be reversed for the reason that the court erred in denying the motion of appellant to set aside the indictment returned against him, and erred also in its instructions to the jury and in its rulings as to testimony offered upon the trial.
As to the constitutional objections made by appellant to the code section on the ground that it is violative of certain provisions of the federal and state constitutions, they are no broader in their scope than those which were urged against this same section in the case of the
People
v.
Finley,
As to the other points urged for a reversal:—
An indictment had been presented against the appellant оn April 11,1905, attempting to charge him with the same offense of which he was subsequently convicted. A demurrer by appellant to that indictment was sustained on June 26, 1905, and an order made by the court directing that the ease be submitted to another grand jury as provided in section 1008 of the Penal Code. On August 3, 1905, appellant sued out a writ of habeas corpus to obtain his discharge from the sheriff and to be remanded to the custody of the warden of the state prison at Folsom, which application on hearing was granted and an order made accordingly. On August 10, 1905, a grand jury other than the one which had presented the original indictment against defendant, returned another indictment against him charging him with the same offense attempted to be charged in the indictment of April 11, 1905. *170 This latter indictment is the one under which he was tried and found guilty, and was returned forty-five days after the order sustaining the demurrer and ordering the cause submitted to another grand jury was made.
One of the grounds of the motion to set aside the last indictment was that it had not been returned within thirty days after the order sustaining the demurrer to the first indictment was entered, the appellant insisting that the same principle of law (Pen. Code, sec. 1382),—namely, that an information must be filed against a defendant within thirty days after he is held to answer or the information must be dismissed, must be applied by legal analogy to an indictment, and that unless the indictment is returned within thirty days after demurrer sustained and order made submitting the cause to another grand jury, the indictment must bе dismissed.
Another ground of the motion to dismiss the indictment was that one of the members of the grand jury which indicted the appellant was disqualified to act as such because he had been discharged as a trial juror within one year previous to his being impaneled as one of the grand jurors. (Code Civ. Proc., sec. 199, subd. 3.) Still another ground was that certain of the persons who acted as grand jurors and returned the indictment were aliens.
We simply mention these various grounds urged by appellаnt only to say that they were all presented exactly as they are presented now on a similar record in the case of the
People
v.
Quijada,
One point, however, is made now which does not appear to have been presented in the Quijada case. It is that the order discharging the defendant frоm the custody of the sheriff and remanding him to the custody of the warden at Folsom prison, made on the petition of appellant in the habeas corpus proceeding more than thirty days after the order sustaining the demurrer to the original indictment, nullified and terminated the effect of the order of court directing that a new indictment be filed in the matter. There is nothing in this claim. All that the order made on habeas corpus operated on was the custody of the defendant. The *171 validity of the indictment did not depend on whether the defendant was in the custody of the sheriff or the warden or in custody at all. It depended upon the order of resubmission, which the order on habeas corpus changing the custody of the defendant from the sheriff to the warden of the state prison, did not pretend to nor could effect.
This leaves for consideration only the questions as to the rulings of the court upon the admission of evidence and the action of the court upon the instructions.
As to the rulings of the court:—
While the prosecution was presenting evidence as to the conduct of the prisoners, other than the defendant, at the •time the general assault was being made upon the officers of the prison the defendant objected to its introduction before evidence had been preliminarily introduced showing a conspiracy in which defendant was engaged. The court overruled the objection, admitted the evidence, and appellant assigns it as error. This is the only assignment of error made as to the admission of this evidence, and the point as made, is nоt well taken. The order of proof is within the discretion of the court, and while the practice is not to be commended of permitting testimony of the declarations and acts of an alleged conspirator before proof of the conspiracy is made, it is not error to do so.
(People
v.
Van Horn,
Complaint is also made by applicant of the admission of evidence over his objection of seven certain Imives—one found at a spot on the bridge where the defendant fell when shot by one of the guards as he was making his way back to the quarry after the shooting first commenced—the other six knives picked up near the railroad track where defendant and the other prisoners with the captured officers were gathered when the first shots were fired. We perceive no ground for holding the admission in evidence of these knives improper. It was not essential to the admission in evidence of the knife found where defendant fell that it should have been proven by direct evidence that the defendant had had the knife in his possession. Nor is it of any consequence that the defendant was charged with an assault with a chisel and not with a knife. The proof being that many of the co-conspirators of appellant were armed with knives which were being actually used by them in malting the assault upon the prison officers, the finding of the knife in the vicinity where the defendant fell would have warranted the jury in concluding that the defendant was also in possession of a *173 knife, although the particular assault made by him was with a chisel. The possession of the chisel, which the defendant had picked up as he and the others were passing the engine house in the vicinity of where the assault took place, was not incompatible with possession by him also of a knife, and possession by defendant of both weapons was a circumstance to be considered by the jury as bearing on the question of the intent with which he had made the assault on Murphy with the particular weapon with which he is charged in the indictment as having done so. Aside from this, however, the Imife fоund where defendant fell, together with the other knives found, all in proximity to where the defendant and the other prisoners were gathered when the firing on them by the guards took place, were admissible in evidence, together with all the circumstances accompanying the assault, as bearing on the question of the conspiracy charged to exist among all of the assailing prisoners, including the defendant, and also as evidence of the intent with which the assault in generаl was made by all the prisoners. This would be true independent of any possession by the defendant of the particular knife found where he fell. The fact that it was found at that place would be but an incidental circumstance which could not however affect its admissibility in evidence for the purposes we have indicated.
Another error assigned is that the court permitted the defendant, a witness in his own behalf, to be asked on cross-examination, over objection, how many times he had been convicted of a felony. The inquiry was entirely proper.
(People
v.
Eldridge,
The other errors assigned as to rulings upon the admission of testimony have been fully examined, are without merit and no particular mention need be made of them.
Appellant next claims that the court erred in its action relative to instructions, such alleged errors consisting of the giving of certain instructions by the court of its own motion, the refusal to give instructions asked by appellant, and the mоdification of others tendered by him.
The defense interposed by the appellant on his trial—he was a witness in his own behalf—was that he had not entered into a conspiracy with the other prisoners to attempt an escape or to commit an assault upon the prison officers with that *174 object in view, nor did he commit any assault at all; that he was working at the rock crusher with the other prisoners and when he saw some of them assaulting the officers and rushing them to the bridge to effect an escape, he took advantage of the apparent opportunity to escape and followed the other prisoners with a view of doing so; that the chisel he had picked up as he and the others were passing the engine house in the vicinity of where the assault took place, but that he did not use it at all in striking Murphy, but simply carried it with him. The theory of the prosecution was that appellant, with the other prisoners engaged in the аssault, had entered into a conspiracy to escape and had armed themselves for that purpose with deadly weapons with which the officers, particularly Murphy, were assaulted; that even if the appellant was not a party to the conspiracy between the other prisoners, the evidence showed that he had aided and abetted them in their, assault on Murphy with a deadly weapon and, aside from this, was himself an assailant of Murphy with a similar weаpon.
We do not perceive what place the theory of the prosecution that appellant might be convicted as an aider and abettor of his co-conspirators in their particular assault with knives on Murphy had in the case. The defendant was not charged generally with an assault with a deadly weapon upon Murphy, but with an assault made by himself with a particular deadly weapon,—to wit, with a blacksmith’s steel chisel having a long wooden handle. Had he been charged generally with an assault with a deadly weapon, undoubtedly he might have been convicted by proof that he had aided and abetted the other prisoners in such an assault with such a weapon upon the officers with intent to escape from prison. As an aider and abettor he would then have been in law a principal in the commission of said crime, although he actually made no assault with a deadly weapon himself. (Pen. Code, sec. 31.)
But as he was charged with an assault with a weapon of specific character he could only be convicted by proof of an assault made by him with the weapon charged, and the theory of responsibility as an aider and abettor in an assault made by the other prisoners with other weapons was neither tenable nor permissible under the indictment against him. But as appellant does not make any complaint on this appeal as *175 to this theory—that is, presents no assignment of error either as to any evidence admitted, which might have any relation to it, or complains of any instruction of the court respecting it, and did not ask the court for any instruction which would have eliminated its consideration by the jury—it is unnecessary to further discuss the proposition. Counsel for appellant doubtless considered this theory of little moment, as the evidence of appellant was that he joined the other prisoners in an attempt to escape; that he Avas armed with a deadly weapon with which he is charged to have assaulted Murphy, denying only that he was a party to any conspiracy with the other prisoners to escape or to assault the officers with a deadly weapon to effect that purpose, or that he in fact assailed Murphy with the chisel.
Now as to the instructions of which appellant does complain :—
It is clear from the record that some of the instructions tendеred by the appellant and refused by the court were substantially contained in other instructions given by the court, hence, appellant has no ground of complaint as to their refusal. This applies to a number of instructions tendered by appellant and refused for that reason.
Appellant complains because the court instructed the jury that it was made a crime by our statute for a person undergoing a sentence in a state prison for less than life to еscape therefrom, and that if persons confined in a state prison, one of whom is confined for a term less than life, conspire together to escape from such prison, all are engaged in the conspiracy to commit a crime. This instruction was correct as matter of law (Pen. Code, secs. 105, 182). There was evidence pertinent to which it might be applied and it was proper that the court should instruct the jury as to the criminality of a conspiraсy to effect an escape as bearing on the question of the intent with which the defendant, if found to be a party to the conspiracy, made the assault with which he was charged.
There was no error committed by the court in refusing to instruct the jury at the request of appellant that they might return any of four verdicts,—namely, guilty as charged in the information, guilty of assault with a deadly weapon, guilty of simple assault, and not guilty. Under the Penal Code section authorizing prosecutions against “life termers" *176 for assault with a deadly weapon with malice aforethought, it could not have been in the contemplation of the legislature that the rule applying to prosecutions for assault with intent to commit murder where the deadly weapon with which the assault was committed is specified or described in the information should apply to prosecutions under the section of the Penal Code here under consideration; that in a prosecution, such as is had under this particular code provision, the jury might be warranted in finding the defendant guilty of assault with a deadly weapon or of simple assault and that the court should instruct them to that effect. Nothing could be accomplished by requiring a jury under such a prosecution to return a verdict of either of these lesser degrees of crime against one already serving a term of'life imprisonment, because no punishment whatever could be meted out to him as a penalty on such conviction. The punishment for simple assault could only amount to a term in the county jail; as a punishment upon conviction of assault with a deadly weapon, at the option of the trial court, the defendant might be sentenced for a limited time to the county jail or the state prison. But where a defendant is already undergoing a life sentence it would be idle, even absurd, to say that the legislature ever contemplated in a prosecution under section 246 of the Penal Code the return of verdicts upon which no possible punishment could be meted out to the defendant, and which, for all practical purposes, would be equivalent to a verdict, at least as far as any punishment thereon is concerned, of not guilty. It is true that the court upon conviction of either of the lesser degrees of crime might, under the law, impose a fine on the defendant enforceable on execution, but it is hardly worth seriously considering thаt the legislature intended to permit a return of such verdicts in contemplation solely, of an extreme possibility, of enforcing the payment of such fines.
We think that under a reasonable construction of section 246 of the Penal Code it was never contemplated that any verdicts should be returned in a prosecution under it save either a verdict of guilty as charged in the information or a verdict of not guilty, and that instructions to that effect are all that should be given tо a jury. If the evidence in a prosecution under this code section would only warrant a verdict of assault with a deadly weapon or of a simple assault had the *177 prosecution been under another section which permits the return of such verdicts, then it would be the duty of the jury to return, not any of such verdicts, but a verdict of not guilty. The proof must measure up beyond a reasonable doubt to the exact charge as contained in the information, and unless it does so thе defendant is entitled to a verdict of not guilty. In order to warrant the jury in the case at bar in returning a verdict against the defendant it was essential that the jury should find, 1. That the defendant at the time of the commission of the alleged assault was a prisoner undergoing a life sentence in the state prison; 2. That while undergoing such sentence, he, with malice aforethought, made an assault upon Murphy; and, 3. That the defendant made such assault with a deadly weapon. The finding of all these еlements beyond a reasonable doubt was essential to a conviction. If the jury entertained a reasonable doubt as to any or all of them, they should have returned a verdict of not guilty. The court so instructed the jury, and we are satisfied that these instructions as to the verdicts they might find were, under a proper construction of the section, the only verdicts, either of which they could return.
We have examined other instructions of which the appellant complains, and without discussing them are satisfied that the action of the court in giving or refusing them was correct.
The judgment and order appealed from are affirmed.
Angellotti, J., Shaw, J., Melvin, J., and Henshaw, J., concurred.