Sharpstein, J., dissenting: On the ninth day of August, 1880, the information upon which the defendant was tried for murder was filed in the Superior Court of San Joaquin county. The homicide was alleged to have been committed on the eighth day of August, 1880, but it was proved to have been committed on the eighth day of August, 1879. The variance between the allegation and proof as to the date of the homicide is material if, as I [253]think, the defendant could not be proceeded against by information for a felony committed prior to April 9, 1880, when the act to provide for prosecutions by information went into effect. At no time between the eighth day of August, 1879, when the homicide was committed, and the ninth day of April, 1880, when the act above referred to went into effect, could the defendant have been “held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a Grand Jury.” And it is a general rule that a statute affecting rights and liabilities should not be so construed as to act upon those already existing. “But as far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place.” (Cooley’s Const. Lim. 272.) “The Legislature may abolish Courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it can not lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.” (Id.)
That the provision of the late Constitution, which I have quoted, was one of the substantial protections with which that instrument surrounded persons accused of crime can not be doubted. And the Legislature could not, while that provision was in force, dispense with the requirement, that a person before being held to answer for a capital offense, should be presented or indicted by a grand jury. It is, therefore, sufficiently clear that a presentment or indictment of a grand jury was not a mere mode of procedure which the Legislature might in its discretion dispense with or change. That could only be effected by a change in the fundamental law of the State. And that has been so changed as to sanction a proceeding by information in any case in which a proceeding by presentment or indictment of a grand jury was authorized by the late Constitution. So that the real question to be determined is whether the clause of the present Constitution which provides for the prosecution by information of offenses which previously could only be prosecuted by indictment operates retrospectively. “The Courts,” says Sedgwick, “re[254]fuse to give statutes a retroactive construction, unless the intention is so clear and positive as by no possibility to admit of any other construction.” (Stat. and Const. Construction, 2d ed., 166.) And Cooley says, that “it is a sound rule of construction that a statute should have a prospective operation only, unless. its terms show clearly a legislative intention that it should operate retrospectively.” (Const. Lim. 370.)
It must be conceded, I think, that the statute which authorizes the prosecution of a capital crime by information, could not be held to operate retroactively, unless the constitutional provision upon which that statute is based, was intended so to operate. But I am unable to find anything in the statute which indicates a legislative intention that it should operate retrospectively. And there was no reason why it should. The proceeding by indictment -was not abolished, and the defendant might have been prosecuted by indictment as well after as- before the present Constitution went into effect.
The constitutional provision that “ offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law,” is not by its terms retrospective. And the provision in section 2, article xxii, that “All indictments or informations which shall have been found, or may hereafter be found, for any crime or offense committed before this Constitution takes effect, may be proceeded upon as if no change had taken.place, except as otherwise provided in this Constitution,” must- be held, I think, to refer to such informations only, as were authorized by the Penal Code to be filed before the Constitution went into effect. The first clause, which reads, “All * * * in-formations which shall have been found * * * for any crime or offense committed before this Constitution takes effect,” undoubtedly does. And unless the phrase, “ or may hereafter be found” refers to informations other than those referred to in the first clause, it is quite clear that it does not embrace this information.
Informations are not found but filed. That is no less true [255]of informations authorized by the present Constitution than it was of those which were provided for in the Penal Code before the adoption of the present Constitution. So that the use of the word “ found” in connection with “ information” possesses no significance beyond what the use of the word “ filed” would in that connection. 1
It will be further observed that this clause provides for proceedings to be had upon indictments found or informations filed, for crimes or offenses committed before the Constitution took effect. It does not provide for the finding of indictments or filing• of informations for crimes or offenses committed before it took effect; but for proceedings upon them, “as if no change had taken place.” If no change had taken place, informations, laid before committing magistrates, might be proceeded upon in the mode prescribed in the Penal Code. And soz might they be after the change took place, as to crimes and offenses committed before the Constitution took effect. But before the Constitution went into effect the defendant could not have been held to answer for the offense with which he is charged without the intervention of a Grand Jury. After it went into effect he could be proceeded against upon an indictment or information which had been found or might be found for an offense committed before the Constitution went into effect. He could not have been tried upon an information which had been found before the Constitution went into effect, but he might have been proceeded against before a committing magistrate upon an information laid before such magistrate, and so he might have been after the Constitution went into effect. He could have been tried upon an indictment after the Constitution went into effect for an offense committed before it went into effect. This appears to me to be the meaning of the Constitution, It certainly does not mean that persons who committed crimes before the Constitution took effect were to be proceeded against in the same manner as they might be if they had committed them after it went into effect; but in the same manner that they might be if it had not been adopted—that is, by information or indictment, as authorized by law before the Constitution took effect.
[256]The defendant’s motion for a new trial, on the ground that the verdict was contrary to evidence, should have heen granted because of a fatal variance between the proof and the information.
Nor can I assent to the doctrine that the rejection of any competent evidence which tended to prove that the homicide was justifiable, constituted an immaterial error, even though this Court cannot discover that the evidence rejected, would in connection with the evidence introduced have established a case of justifiable homicide. The rejection of competent evidence is not a technical error in the sense in which that term is used in The People v. Brotherton, 47 Cal. 404. In that case it did not appear what the proposed evidence was, and the bill of exceptions omitted to state that it was material. As the record did not contain the rejected evidence, or state its substance, or even state that it was material, this Court would not presume that it was, and, if not material, the rejection of it was at most a technical error. In this case the record does disclose the nature of the testimony offered and rejected. Of its materiality there can be no doubt. It constituted a material element of the defense relied upon. The appellant had a right to have it considered and passed upon by the jury. If with or without that evidence the jury had acquitted him, neither the Court below nor this Court could disturb the verdict on the ground that the evidence was insufficient. (People v. Webb, 88 Cal. 467.) Wisely or unwisely, the Constitution and the laws of most, if not all the States of this Union, prohibit, so far as laws can, the interference of the courts with facts in criminal cases. They may grant a new trial where the evidence is insufficient to justify a verdict of guilty, but not where it is insufficient to justify a verdict of not guilty. If the evidence rejected had been admitted and the Court had instructed the jury that it was not in connection with the other evidence sufficient to prove the defense of justifiable homicide, this Court would have reversed the judgment without hesitation. Then how can this Court hold that competent evidence upon which the jury might have acquitted the defendant was not material to him ? . If the Constitution and laws of this State afford too much [257]protection to persons accused of crime, let those who make constitutions and laws change them.
The effort of the defendant was to convince the jury that the deceased intended to kill his, defendant’s, mother and sister, or one of them, or to do them or one of them some great bodily injury. For that purpose he introduced evidence tending to prove that at the time of the alleged homicide the deceased was going toward a house at which the defendant’s mother and sister were then staying. The appearance of the deceased, his conduct, and what he said on that occasion, were testified to by the defendant and other witnesses. In connection with that testimony the defendant offered to prove that the deceased had made threats against the lives of defendant’s said mother and sister. What weight might properly have been given to this evidence was for the jury to determine. It might not be entitled to any, but it was not for the Court to determine whether it was or not. The Court might properly have instructed the jury that bare threats against the life of the defendant, or his mother, or sister, would constitute no justification of the homicide. But the Court could not properly have instructed them that the evidence introduced, in connection with that rejected, would not constitute such justification. Therefore the Court, .in rejecting competent testimony on the ground that if admitted it would not constitute a justification of the homicide, as clearly usurped the functions of the jury as if it had admitted the rejected testimony and then instructed the jury that the evidence did not establish a case of justifiable homicide. It would be strange, indeed, if, under our system of jury trials, a Court could exclude all the evidence offered by a defendant on the ground that if it were introduced it would not entitle him to a verdict of acquittal. And that is the ground, and the only-ground, upon which the ruling of the Court below, in this-case, can be sustained.
In People v. Rector, 19 Wend. 569-590, Hr. Justice Cowem said: “ The jury might have laid no stress upon the circumstance ; but I think it should have been received, because we can not say they would not. The lightness of a relevant circumstance is no argument for withholding it from a jury.” [258](Rex v. Northampton, 2 Maule & Selw. 262.) The precise point involved in this case has not heretofore, so far as I am informed, been before this Court. In the case of the People v. Arnold, 15 Cal. 476—481,- the Court said: “The threats must be shown to have been communicated to the accused before they are admissible for any purpose. * * * In this case there is no pretense that-this threat, if there' was any, was so communicated.” That case would- be an authority upon- the question of the admissibility of evidence of uncommunicated threats. In this case the threats were communicated to the accused.
In People v. Scoggins, 37 Cal. 676-683, it was held -that it was not error to exclude evidence of uncommunicated threats. But the Court significantly added: “ If the threats of the deceased had been communicated to the defendant before the killing, the evidence would have been clearly competent.” The decisions in other States upon this question are not harmonious. But as was said in Wiggins v. People, 93 U. S. 465-483, the tendency of modern decisions is to admit the evidence of threats made by the deceased and- communicated to the prisoner before the killing, even if the other evidence to support the theory of self-defense is slight. In Stokes v. People, 53 N. Y. 174, the - Court held such evidence admissible., Grover, J., who delivered the opinion of the Court, said; “ I think the testimony offered competent and the exception to its exclusion-well taken. The error was one prejudicial to the accused, by depriving him of the right to have competent testimony in his favor considered by the jury, andean not be overlooked by the Court.”
In Texas, Tennessee, and Georgia, the- exclusion of such evidence has been held to be -error, without reference to the question whether there was-any evidence tending to show that at the time of the killing the deceased was doing anything to indicate an intention of putting his threats into execution, it being the exclusive province of the jury-to determine whether he was or not.- (Pridgen v. The State, 31 Tex. 420; Jackson v. The State, 6 Bax. 452; Howell v. The State, 5 Ga. 48; Monroe v. The State, id. 85.) - In the Georgia cases, the Court said: “That naked threats, unaccompanied-with personal violence, were admissible to show the reason[259]ableness of the defendant’s fears, provided a knowledge of the threats was brought home to him.”
For these reasons I think that the judgment and order of the Court below should be reversed.
McKirstry, J., and Thorrtor, J., concurred in the opinion of Sharpsteir, J.