name of Pfeifer, who, with defendant and one Gavin, had been jointly charged with the offense. The person robbed conducted a store at the corner of Temple and Olive streets, in the city of Los Angeles. The evidence of the accomplice Pfeifer was to the effect that he, Gavin and defendant, for the purpose of committing the robbery, repaired to the vicinity of this store on the evening of December 23, 1908; that in going to the store they walked north on Olive street to Temple street, at which point and a few feet south of Temple street he and Gavin stopped, while defendant, in accordance with the prearranged plan, walked a short distance east on Temple street, but in view of Pfeifer and Gavin, to whom he waved his hat as a signal to them to proceed, and, after receiving such signal, they did enter the store and robbed the proprietor thereof; that after committing the offense the three met in a room and divided the proceeds of the crime. The robbery occurred about 8:45 P. M. Under section 1111, Penal Code, this evidence of Pfeifer is insufficient to justify the conviction of defendant, unless it is corroborated "by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense." In our judgment, there is ample evidence to satisfy the statute in this regard. Two witnesses called by the people testified that about 8:30 o'clock on the evening of the robbery, while walking east on Temple street, they passed the store where the crime was committed, at which time they saw the defendant sitting upon a curb in front of a yard about one hundred feet east of Olive street; that about one hundred feet from where defendant was sitting they saw two men standing on Olive street, near Temple, toward whom and the store defendant was looking, and which two men they afterward recognized as Gavin and Pfeifer. The active part in the robbery taken by defendant, according to the testimony of the accomplice, was that of a "lookout," and the independent evidence tends strongly to corroborate Pfeifer's statement in this respect. The fact that the corroboration does not extend to every detail covered by the statement of the accomplice is unimportant. It is not necessary that it should. (People v. Kunz, 73 Cal. 315, [14 Pac. 836]; People v. Cloonan, 50 Cal. 499.) Neither does the rule require that the degree of such evidence be strong; indeed,

"the corroborating evidence is sufficient if it of itself tends to connect the defendant with the commission of the offense, although it is slight and entitled, when standing by itself, to but little consideration." (People v. McLean, 84 Cal. 482, [24 Pac. 32].)

Counsel for appellant contends that the court erred in overruling defendant's objections to a number of questions which he claims assumed facts not in evidence and contradictory of the evidence theretofore given by the witness. Appellant does not specify the questions, other than to designate the folios of the transcript. Reference to the designated folios in some cases discloses no question asked of any witness; in others, no question to which the objection urged is applicable. The reluctance of Pfeifer to testify at all when first called asa witness and his subsequent change of disposition in this respect justified the court in permitting a repetition of questions to which the witness had admittedly given erroneous or evasive answers. We find no error in such rulings.

In reply to a question as to what Pfeifer and Gavin appeared to be doing when seen standing at the corner of Temple and Olive streets, the witness answered: "Why, they appeared nervous as if they were looking out, or as if they were being watched, or might be watched." Defendant moved to strike out this answer, which motion was denied. Conceding the ruling to have been error, nevertheless, such evidence having no reference to the defendant, his rights could not have been prejudiced thereby.

Appellant next contends that the court erred in permitting the prosecution to show, by a witness who was not present when the cars were operated, the running schedule of cars on Temple street on December 23, 1908, and refers to transcript folios 511 to 519 as disclosing such error. Reference to the specified folios discloses that the only evidence included therein. was that of a foreman of the street-car line, who testified that the running time on Temple street was the same on the evening of December 23, 1908, as it was at the time of the trial. This was not hearsay, as contended by appellant, but a statement of fact made, so far as the evidence shows, upon the personal knowledge of the witness. The time schedule was not offered in evidence.

The verdict of the jury is not the subject of an appeal (Pen. Code, sec. 1237), and the purported appeal therefrom must be disregarded.

The judgment and order appealed from are affirmed.

Allen, P. J., and Taggart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 3, 1910.

[Civ. No. 690. Second Appellate District.-November 5, 1909.] THEO. KANOUSE, Respondent, v. L. C. BRAND et al., Defendants; MAX GOLDSCHMIDT, Appellant.

RELEASE OF ATTACHMENT BY SHERIFF OR COURT-STATUTORY UNDERTAKING RETURN OF EXECUTION UNSATISFIED ESSENTIAL.-Where the sheriff takes the statutory undertaking to prevent or release an attachment by him provided for in section 540 of the Code of Civil Procedure, while the writ is still in his hands unreturned, or where, after his authority has ceased by the return of the writ, the court allows a statutory bond pursuant to sections 554 and 555 of the Code of Civil Procedure, to release the attachment, a return of execution unsatisfied in whole or in part against the debtor is essential in order to fix the liability of the sureties thereon as provided in section 552 of the same code.

LD.-COMMON-LAW BOND TO PLAINTIFF-RELEASE OF ATTACHMENT BY PLAINTIFF RETURN OF EXECUTION NOT REQUIRED.-Where the bond is not such as is provided for in the statute, but is a common-law bond running to the plaintiff in the attachment suit, who by his own action voluntarily released the lien of the attachment, no return of execution is required in such case in order to fix the liability of the sureties upon the bond, or as a prerequisite to a suit thereon. ID. CONDITION OF BOND-PAYMENT OF JUDGMENT BY DEFENDANT ON DEMAND INSUFFICIENT COMPLAINT.-Where the bond to plaintiff was conditioned that "in case the plaintiff recover judgment in the action, the defendant will on demand" pay the same, a complaint which does not aver that any demand was made upon the defendant to pay the judgment, or that the amount thereof was not paid,

is insufficient to state a cause of action on the bond, and it was error for the court to overrule a demurrer thereto.

ID. INSUFFICIENT AVERMENT ACCRUING COSTS ON EXECUTION.-The averment following that of the recovery of the judgment that accruing costs were incurred on execution in the sum of $1.50, for which judgment is asked, cannot be regarded as an allegation of demand upon the judgment debtor. ID.-AVERMENT OF DEMAND UPON AND NONPAYMENT BY SURETIES.—The averment of demand upon the sureties and their refusal to pay the judgment, when there is no such averment as to demand upon the defendant and his refusal to pay the same, does not show s cause of action. Such averments are not inconsistent with the fact that the defendant may not have paid the same.

APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick W. Houser, Judge.

The facts are stated in the opinion of the court.

E. B. Coil, for Appellant.

D. Joseph Coyne, for Respondent.

SHAW, J.-This is an action to recover from the sureties on an undertaking given to procure the release of property levied upon under a writ of attachment.

It is alleged in the complaint that one H. J. Stocker, being indebted to the plaintiff, the latter, in June, 1907, brought suit to recover thereon, and procured to be issued therein a writ of attachment under which certain property of Stocker, situated in Los Angeles and Ventura counties, was attached by the sheriffs of said counties; that thereafter, in consideration of the release of said property so attached, the defendants herein as sureties made and executed to plaintiff an undertaking in consideration of which the property so held by the sheriffs under and by virtue of said writ of attachment was released therefrom by this plaintiff.

This undertaking, which is set out in the complaint, after reciting the commencement of the action by plaintiff against Stocker, the issuance of the writ of attachment, and that the sheriff of Los Angeles county had, by virtue thereof, attached certain property of Stocker which the latter desired to have released therefrom, provides: "Now, therefore, we, the undersigned, residents and freeholders in the county of Los Angeles,

in consideration of the premises, and also in consideration of the release from said attachment of the property so attached, as above mentioned, do hereby jointly and severally undertake in the sum of sixteen hundred and no-100 dollars, and promise that in case the plaintiff recover judgment in the action, defendant will, on demand, pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage, interest and costs; the same to be paid in United States gold coin, if so required by the terms of the judgment."

Defendant Goldschmidt filed a general demurrer which was by the court overruled. No answer was filed, and judgment was rendered against him and his codefendant, who had suffered default, in accordance with the prayer of the complaint.

Appellant contends that the complaint fails to state a cause of action, in that it does not appear therefrom that an execution had been issued and returned unsatisfied, as required by section 552, Code of Civil Procedure, which provides: "If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 540 or section 555, or he may proceed, as in other cases, upon the return of an execution." The effect of the provision just quoted is to declare that no action for the recovery upon an undertaking given pursuant to the sections of the code specified therein shall be prosecuted unless an execution has been issued and returned unsatisfied, in whole or in part. (Brownlee v. Riffenburg, 95 Cal. 447, [30 Pac. 587].) This proposition is not controverted by respondent. He contends, however, that the undertaking is not one given pursuant to statute, but that it is a common-law bond, as to which (Palmer v. Vance, 13 Cal. 553; Smith v. Fargo, 57 Cal. 157) the provisions of said section 552 are inapplicable. Neither the issuance of an execution against the judgment debtor nor the return thereof unsatisfied is alleged in the complaint. It is, therefore, clear that if the undertaking declared upon be a statutory bond, the complaint fails to state a cause of action. By the provisions of section 540, Code of Civil Procedure, it is made the duty of the sheriff to whom a writ of attachment is directed to attach the property of the defendant in the action wherein such writ is issued, "unless the defendant give him security by the undertaking of at least two