I dissent.

On December 18 and 19, 1961, petitioner was tried by a jury on two counts of grand theft. The jury retired at 4:12 p.m. on December 19 and returned to the courtroom at 9 :05 p.m. When the court asked if the jury had arrived at a verdict, the foreman replied: “Your Honor, we have not reached a verdict. We have some questions that we would like to ask and advice from the Court if we may?”

The first question, relating to count 1, was whether a charge of theft is nullified if the victim agreed to accept weekly payments as restitution. The court reread an instruction that restitution is not a defense.

The second question, relating to count 2, was, “Would negligence in the care of the funds, whereby another person may have stolen the money still leave the Defendant responsible and guilty of theft?” The court answered: “Well, Mr. Foreman, we are here only concerned with the charge against the Defendant. No one else is charged with theft. The Defendant is not charged with negligence, he is charged with theft. If from the evidence you find that the Defendant is not guilty, find him not guilty. If under the evidence you find that he is guilty, find him guilty in accordance with the evidence and the instructions. Now, that is all the Court can say.”

The court, of course, had previously advised the jury that if there was any reasonable doubt as to the guilt of the defendant, he was entitled to a verdict of not guilty. The information had also been read to the jury and the essential elements of the offense explained to them.

*10 The third and fourth questions involved two evidentiary matters that were clarified by the court and counsel. The following exchange then ensued: “The Court: What is your next question? Foreman Ripley: That is all I have here, Your Honor, unless some question has arisen in the minds of any of the jurors at this time. The Court : Now, Mr. Foreman, without indicating which way you stand, that is, for guilt or for innocence, without indicating which way you stand, tell the Court numerically how the jury stands on Count 1 ? Foreman Ripley : Last count was 10 for acquittal— The Court.- No. Foreman Ripley.- I beg your pardon. I misunderstood your question, sir. The Court : All right. Numerically how do they stand ? Foreman Ripley : Shall I proceed with what I said? 10 for acquittal— The Court: No. Without indicating whether it is for guilt or for innocence, indicate numerically how the jury stood? Foreman Ripley: 10 to 2. The Court.- How did the Jury stand on Count 2 numerically, without indicating which way? Foreman Ripley : Seven to five. The Court : Well, it just appears to the Court, Mr. Foreman, that this Jury has been confused. Some of the jurors are off on a tangent. Apparently they have misconceived the evidence, failed to understand the instructions or have not been able to apply the instructions to the evidence. I feel that I should declare this a mistrial. The Court declares this ease a mistrial. The Jury is discharged with the thanks of the Court.”

The question here presented is whether the trial judge was justified under section 1140 of the Penal Code in discharging the jury. I believe he was.

Section 1140 of the Penal Code provides: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” (Italics added.)

Whether there is a reasonable probability that the jury can agree rests in the sound discretion of the trial court. The power of the court to discharge a jury without the consent of the prisoner is not absolute; it must be exercised in accordance with established legal rules and a sound legal discretion in the application of such rules to the facts and circumstances *11 of each particular ease. (Ex parte McLaughlin, 41 Cal. 211 , 218 et seq. [ 10 Am.Rep. 272 ].)

In the instant ease the trial judge questioned the foreman in the presence of all parties as to how the jury stood numerically on reaching a verdict. After receiving this information and having fully instructed the jury as to the elements of the offense charged and having observed the jurors for two days and listened to the questions of the foreman and his answers to the judge’s questions relative to the standing of the jury, the trial judge was justified in finding that the jury was unable to agree and therefore, under the provisions of section 1140 of the Penal Code, in coming to the conclusion that there was no reasonable probability that the jury could agree and was correct in his ruling discharging them.

This conclusion is supported by the rule in this state that on appeal all conflicts in the evidence must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged to uphold the findings of the trial court if possible. Where the findings are attacked for insufficiency of the evidence, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence to support them. (Estate of Bristol, 23 Cal.2d 221, 223 [2] [ 143 P.2d 689 ].)

In Estate of Bristol this court said, at page 223 [3] : “It is common knowledge among judges and lawyers that many eases are determined to the entire satisfaction of trial judges or juries, on their factual issues, by evidence which is overwhelming in its persuasiveness but which may appear relatively unsubstantial—if it can be reflected at all—in a phonographic record. Appellate courts, therefore, if there be any reasonable doubt as to the sufficiency of the evidence to sustain a finding, should resolve that doubt in favor of the finding; and in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical.” Upon such a view of the law, the finding of the trial court in the present ease should be sustained.

The factual situation presented to the jury in the ease at bar was not complicated. The owner of a restaurant at Lake Tahoe had engaged petitioner and his wife to manage the restaurant. The terms were $100 per week and either one-half or one-third of the net profits. Petitioner was to receive $75 per week and his wife $25. They were also to have lodging and certain meals at the restaurant. The owner stayed with *12 petitioner for several days to show him the procedure for bookkeeping and procured for him deposit bags for the money which was to be left each evening in the bank’s night depository. The owner came up to Lake Tahoe once a week and paid the employees and took back with him the tapes from the cash register and tickets in -order to set up his own ledger and have his accountant post the figures.

This arrangement began about August 12 or 13. August 29 when the owner arrived at Lake Tahoe he found that petitioner had not made any deposits for the period August 21 through August 27. He had a conversation with petitioner, in which petitioner admitted that he had used this money to, pay off his own pressing bad checks and promised to repay the money at $50 per week. The owner agreed, since petitioner had already taken the money.

On September 11 the owner was advised by another employee that petitioner had left the premises and taken all of his belongings with him. The owner then came up to Lake Tahoe and found that although the receipts and register tapes were left in the restaurant, no money had been deposited in the bank account for September 8, 9, or 10, nor was the $150 present which had been kept in the register for change. He also found that the special deposit bags he had given petitioner- to use had been in the bank since the last deposit on September 7.

• The net amount taken for the period August 22 through August 27 was approximately $642.33, and the amount taken for the period September 8 through September 11 was $411.92. Petitioner made no demand for his last pay check or for an accounting and left no forwarding address. The net profit for the period that petitioner operated the restaurant was approximately $130. ■ :

Petitioner’s defense was that as to the first count relating to the money taken during the period August 21 through August 27, he had this money undeposited when he spoke to the owner, and asked to borrow it, and the owner agreed that he could borrow it and repay it at $50 per week; that they had no discussion of any interest; and that he used it to pick up his outstanding bad checks, which he immediately destroyed.

As to the second count, petitioner alleged that he had each day’s deposit in a money bag, which he at first put in his car when he was thinking about leaving the employ of the owner, and then just before he left, he placed these money bags in *13 the box in the restaurant with the register tapes and left them there with a note to the owner that he was leaving and would write him after he was settled.

A further defense was petitioner’s alleged ill health from his high fever, which, according to the testimony of his expert, resulted in his suffering from an intoxication due to endogenous intoxicants. This resulted, according to the expert’s testimony, in a clouding of petitioner’s consciousness.

With this statement of the evidence in mind, it appears that the questions asked by the foreman of the jury patently displayed the jury’s misconception of the charge of theft.

The first question was as to whether the agreement to accept weekly payments by the victim would nullify a possible charge of theft and change it to the “status of a contract to pay on installments. ’ ’

The question with relation to the second count was whether negligence in the care of funds by petitioner whereby another person stole the money would leave him responsible for the theft.

A subsequent question related to the whereabouts of the keys to the bags. The record contained no testimony in this regard.

Thereafter the jury was questioned as to their numerical division on each count. It was 10-2 on the first count and 7-5 on the second. It was at this point that the court declared a mistrial.

It is apparent that if the jury believed petitioner and his testimony, he would not have had a fraudulent intent. However, they apparently did not believe this, or at least some of them did not comprehend the instructions of the court that restitution is not a defense.

The trial judge viewed the individuals comprising the jury and was familiar with their demeanor and at least to some extent with their individual propensities. From the questions propounded to him he apparently concluded that they could not reach an agreement on any count, inasmuch as some of them obviously had not comprehended the evidence, the instructions of the court, or the elements of the charges which were before them. Under those circumstances it was not unreasonable for the judge to conclude that it was unlikely that all of the jurors could ever agree on a verdict. Hence the discharge of the jury by the court could not be said to be an abuse of discretion. (People v. Sullivan, 101 Cal.App.2d 322 , 328 et seq. [ 225 P.2d 645 ].)

*14 The time that a jury should be held for deliberation is within the trial court’s discretion. (People v. Casserio, 16 Cal.App.2d 223, 228 [4] [ 60 P.2d 505 ]; People v. Wooley, 15 Cal.App.2d 669, 673 [2] [ 59 P.2d 1065 ].)

The result which I have reached is supported by the Supreme Court of the United States in its holding in National Labor Relations Board v. Walton Manufacturing Co., 369 U.S. 404 [ 82 S.Ct. 853, 855 , 7 L.Ed.2d 829 ], where the court said: “But the Examiner—the one whose appraisal of the testimony was discredited by the Court of Appeals in Florida Citrus Canners Cooperative ease—sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case [ 340 U.S. 474 ( 71 S.Ct. 456 , 95 L.Ed. 456 )] : . . The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.’ 340 U.S., at 496 , 71 S.Ct. at 469 . For the demeanor of a witness ‘. . . may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.’ Dyer v. MacDougall, 201 F.2d 265, 269.”

The peremptory writ of prohibition, in my opinion, should be denied.

Schauer, J., concurred.