Thornton, J., dissenting. In this case I dissent, and adhere to the opinion filed in department two.- I have examined the cases cited in the opinion drawn up by McKee, J., and find but [673]one which has any application to the case in hand, (People v. Robles, 34 Cal. 591). I cannot think that this case was properly decided. It is not in line with other decided cases, and is sustained by no authority that I have been able to find. None is cited in the opinion. It is opposed to the statute (Penal Code, § 950), and should not be regarded as authority. The fact that other property found in the possession of the defendant when he was arrested, of the larceny of which he was not accused by indictment or by information, cannot be proved to be stolen, in order to show to a jury that he is guilty of the larceny of the property found in his possession at the time of his arrest, of which he was accused regularly, and for which he was on trial. The mere incident of time affords no evidence of intent. If it does, why does not the fact that the defendant had in his possession stolen property twenty-four hours before his arrest afford evidence of intent, and therefore admissible on such issue ? Yet the latter fact would be excluded from the consideration of the jury. But whether such evidence in either case would show intent Is not the question. By virtue of the statute (§ 950, Penal Code), the evidence is not admissible, for the reason that a person cannot be tried for an offense of which he is not informed by the information or indictment that he is accused. (See Walker v. Com., 1 Leigh, 574.) He would, in such case, be taken- by surprise. He would, not have been informed of the offense of which he was accused, and would have taken no steps to prepare to defend himself as to such offense; People v. Lopez, 59 Cal. 362, does not present the .point involved herein. The evidence held to be admissible• in that case was received in this without objection.
The foregoing observations, with the opinion rendered in department two, will constitute my dissenting opinion.
The opinion in department two, filed November 25, 1884, is as follows:
Thornton, J. The defendant was accused, tried, and convicted of the crime of grand larceny, in stealing, on the 18th of May, 1883, five head of cattle, the property of one John Trimble.
It is urged that several errors were committed'on the trial, on account of which the conviction ought not to be permitted to Stand.
[6741]. When the defendant was arrested, there was found in his possession a steer belonging to Charles Wade, which was not referred to in the information.
In relation to this steer, the following occurred on the trial: Charles Wade was called as a witness in rebuttal for the people, and testified that on the 20th or 21st of May, 1883, he got from Trimble’s pasture a red and white steer.
The district attorney, at the instance of the court, stated his reasons for offering the testimony which he was about to introduce, as follows: “ The defense in this case is, that the defendant purchased the cattle which have Mr. Trimble’s brand from the man who had charge of them, Carmel. This testimony is offered as tending to show that the story is improbable, because he took not only the cattle which had Mr. Trimble’s brand, but another animal which did not belong to Mr. Trimble, whose brand the defendant, from his own testimony, is well acquainted with, and that of another owner at the same time. I understand that the taking of different articles at the same time is always admissible, as tending to show the intent with which the animals were taken. ”
The defendant objected:
“First.—If this testimony is offered for the purpose indicated, it was a part of the state’s original case, and should have been then offered, and not in rebuttal. It rebuts nothing offered by us.
“ Second.—It is not within the charge. The defendant is not charged with taking any but the Trimble cattle. It is, therefore, incompetent and inadmissible.”
These objections were overruled by the court, and an exception was reserved.
The witness, Wade, then proceeded to testify as follows :
“ This red steer was mine, branded with my brand, and had my ear marks. I never sold that steer, nor authorized any one else to sell him. He was sent out there in that range the 1st of March, 1883, and I saw him between Dougherty’s and Carmel’s about the first of May; was between the 15th of April and the 1st of May.”
The court, in its direction to the jury, stated the reasons which induced it to admit the testimony, as follows:
[675]“ This evidence is not admitted as tending to prove that he ” (referring to defendant) “ had stolen Wade’s steer, as charging him with the guilt of that offense, or as seeking any conviction of him here on that ground; but simply as making it more or less probable or improbable that his explanation that he acquired honestly the other animals was founded in truth, by showing that at the same time he had in his possession property taken by other thefts at the same time.” Then, after giving an illustration as tending.to show the relevancy and bearing of the evidence, this further was said as the reason why the testimony was let in; that, “ stated plainly and simply, that if he took the Wade steer and drove it off, it was more probable that he was stealing the Trimble cattle and taking them off; and that the explanation that he bought them from Carmel, supposing that he had a right to sell them, was not a truthful explanation.” By the foregoing, in our judgment, the jury were informed that the evidence as to the Wade steer was let in for their consideration, that they might find whether defendant stole this steer or not; and if they did so find, such conclusion would render it more likely to be true that he had stolen the Trimble cattle ; in other words, that if they found that he had stolen the Wade steer, of which he was not accused in the information, it was a circumstance from which they might infer a larceny of the Trimble cattle, with which he was charged in the information.
In admitting the evidence objected to, we are of opinion that the court below fell into an error. A person cannot be accused of one offense and tried for another. The indictment or information must charge but one offense (Penal Code, § 954), and it must contain a statement of the acts constituting the offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended. (Penal Code, § 950.)
The object of these provisions is to present a distinct issue for trial, and clearly inform a defendant of that with which he is charged, that he may prepare to meet it. The evidence should therefore be confined to the offense charged, otherwise the party on trial might be taken by surprise.
It was well said by the general court of Virginia, speaking [676]by Brockenburgh, J., on this point: “ As he ” (the defendant) “is charged with a particular offense, he has notice to be prepared to defend himself against that charge, and that alone; he cannot be prepared to defend himself against other charges not exhibited against him, or to maintain the integrity of his whole life, when that is not put in issue.” ( Walker’s Case, 1 Leigh, 594.) The principles just above referred to were violated in the ruling in this case. The evidence as to the Wade steer should have been excluded from the jury. The conclusion here reached is supported by the decisions of this court, in People v. Hartman, 62 Cal. 562, and People v. Wood, 12 Pac. C. L. J. 146.
2. The prosecution offered in evidence the reporter’s notes in short-hand of the testimony of Ernest L. Fischer, taken on the preliminary examination of the defendant; offering, at the same time, to prove the correctness of the notes by the reporter, who was present. Fischer had died intermediate the preliminary examination and the trial, which was admitted by defendant’s counsel; and it was further admitted that defendant was present with his counsel at such examination, and that his counsel then and there cross-examined Fischer in defendant’s presence, and that the reporter would testify that his notes correctly represented Fischer’s testimony on that occasion.
To the introduction of this testimony the defendant objected, on the ground that it was incompetent and inadmissible; that in a criminal prosecution, the defendant must be confronted with the witness; and depositions cannot be read except in certain specified cases, of which this is not one ; that the testimony of a deceased witness, taken or given on a preliminary examination, cannot be used in a criminal case ; that such examination is not a former action, within the meaning of the statute. The court ruled against these objections and admitted the evidence, to which an exception was reserved by defendant.
If the testimony of Fischer, given on the preliminary examination, had been taken, written out, certified, and filed by the reporter, as provided by section 869 of the Penal Code, it would have been admissible as a deposition, in the case of the death of the witness before the trial, as provided in section 686 of the same code. We recently held such a deposition admissible in [677]the People v. Oiler, 66 Cal. 101, where the witness had left the state after his testimony was taken, and prior to the trial. But we are of opinion that the written deposition is alone admissible, unless in case of its loss or destruction, when secondary evidence of its contents may be given. The object of the provisions of the sections of the Penal Code above cited (686 and 689] was to have the testimony on preliminary examinations so taken that it might be preserved as given, for use or reference at a time subsequent to that at which it was taken; and that if it became necessary to use such testimony on a trial, the written deposition, taken and certified as required by law, should alone be used for such purpose, and that resort should not be had to the memory of those who heard it. We are, therefore, of opinion that the court fell into an error, in allowing the above-mentioned evidence of Fischer’s testimony to go to the jury.
We find no other error in the record; but for those above mentioned the judgment and order denying defendant’s motion for a new trial are reversed, and the cause remanded for a new trial.