By the Court, Sanderson, J.:
The averment that the homicide was committed “ by some means, instruments and weapons to the Grand Jury unknown,” is sufficient. The only reason assigned by the common law why the manner and means by which the homicide was committed should be stated in the indictment, was that the defendant might be fully informed as to the case against him, and thereby enabled to prepare for his defense. As we had occasion to remark in the case of The People v. King, 27 Cal. 510, this reason of the common law was but a flimsy pretext, for if the defendant was guilty, he stood in no need of information as to the means by which he committed the crime; and if not guilty, the information that he did the act in a particular way, or by the use of particular means, could not assist him in the preparation of his defense. Hence, in the legislation of this State, and in the practice of this Court, the rules of the common law, in respect to indictments, have been more and more relaxed as occasion has suggested. Thus it has been held that a description of the weapon is not necessary, (People v. Stevenson, 9 Cal. 273,) and that it is not material to describe the wound, further than to say that it was mortal, or that the [201]*201party died of the wound. (People v. Judd, 10 Cal. 313.) While it may be well to state the means by which death was caused, we do not consider such a course indispensable. The killing is the ultimate and issuable fact, and we can perceive no 'satisfactory reason why the means by which it was done should be stated in every case, and certainly not in a case where the means are unknown. In this case, as yet, the means by which the homicide was committed lie mainly in conjecture. True, the Grand Jury might have multiplied counts until all possible modes and means of inflicting death yet discovered had been described; but to what good purpose ? The defendant, in that case, would have obtained no valuable information. He would have been as little informed as to the real means as he is by the present indictment; and yet the one or the other course must be adopted, where the means are unknown, for the criminal cannot be allowed to escape justice because the precise means by which the crime was committed cannot be discovered.
In the celebrated case of The Commonwealth v. Webster, 5 Cush. 295, the indictment contained four counts. In the first it was alleged that the homicide was committed by stabbing with a knife; in the second by a blow on the head with a hammer; in the third by striking, kicking, beating and throwing on the ground; and in the fourth, “ in some way and manner, and by some means, instruments and weapons, to the jury unknown.” The last count was held to be good on demurrer; and we think the ruling was consistent with reason and not opposed to any rule of law.
H. The Court did not err in instructing the jury that “ in order to convict, circumstantial evidence should be such as to produce nearly the same degree of certainty 'as that which arises from direct testimony, and to exclude a rational probability of innocence.” It was but another mode of telling the jury that, although as a general rule circumstantial evidence, in the nature of things, may not be so entirely satisfactory proof of a fact as the positive testimony of credible [202]*202eye witnesses, yet they must convict, if they were satisfied of the guilt of the defendant to the exclusion of all rational probabilities. There are instances in which circumstantial evidence may be found to produce as strong a conviction of the defendant’s guilt, if not stronger, than could be produced by the most direct and positive testimony; yet it is certainly true, as a general proposition, that the latter is the most satisfactory in the estimation of mankind. The Court did but recognize this general principle while telling the jury that they were bound to find the defendant guilty upon circumstantial evidence, if it was of such a character as to satisfy them of his guilt to the exclusion of any other rational theory, and in doing so the Court seems to have adopted the precise language of the books. (1 Phillips on Evidence, 10th English and 4th American edition, 113 et seq.) If the same absolute certainty of conviction which is generally produced by the direct and positive testimony of credible eye witnesses was required in cases of circumstantial evidence, verdicts of guilty would be rare and murder frequently go unpunished. Where the evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant, but inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye witnesses would have been.
JSTor do we see any substantial objection to the remarks of the Court to the jury in relation to those extreme cases of circumstantial evidence, where there had been convictions, and it had afterwards transpired that the parties were innocent, which had been read to them by counsel for the defendant. Those cases having been read to the jury, and commented upon at length by counsel for the purpose of creating in their minds a distrust of the kind of evidence upon which the prosecution was forced to rely, it was competent for the Court to caution them against the alleged dangerous tendency of circumstantial evidence, claimed by [203]*203counsel to be demonstrated by those cases. The same course was pursued by the Circuit Court of the United States at the trial of Tom Jones (2 Wheeler’s Criminal Law Cases, 461.) In his charge to the jury, Mr. Justice Thompson said : “ A number of cases have been cited and read to show you the dangerous tendency of this kind of proof. It is possible that an innocent person may have suffered, but such cases (if any such there are) could be no objection to this kind of evidence; if jurors were to disregard it, there would be an end to the administration of law and to government.”
When counsel for the defense make a persistent attack upon this kind of proof, and undertake to establish its alleged dangerous tendency by reference to those rare cases where it is shown that innocent persons have been found guilty upon circumstantial evidence, and by such a course may have shaken the confidence of inexperienced jurors in a species of testimony which, notwithstanding all that can be urged against it, is, in the judgment of those most experienced in the investigation of truth and the administration of justice, not unfrequently as entirely satisfactory—if not more so—than the positive testimony of individuals, it is not only competent for the Court, but the Court would stop short of a performance of its duty to the cause of justice if it failed to caution the jury against attaching too much importance to the teachings of such cases, and to remind them of the true character and weight which, as all human experience shows, ought at all times to be accorded to the voiceless yet eloquent testimony of circumstances.
The remarks of Mr. Justice Park, in his charge to the jury in the case of The King v. John Thurtell, are a just and eloquent tribute to the true character of circumstantial evidence, and would not have been out of place in this case. He said: “ The eye of Omniscience can alone see the truth in all cases; circumstantial evidence is there out of the question ; but clothed as we are with the infirmities of human nature, how are we to get at the truth without a concatena[204]
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By the Court, Sanderson, J.:
The averment that the homicide was committed “ by some means, instruments and weapons to the Grand Jury unknown,” is sufficient. The only reason assigned by the common law why the manner and means by which the homicide was committed should be stated in the indictment, was that the defendant might be fully informed as to the case against him, and thereby enabled to prepare for his defense. As we had occasion to remark in the case of The People v. King, 27 Cal. 510, this reason of the common law was but a flimsy pretext, for if the defendant was guilty, he stood in no need of information as to the means by which he committed the crime; and if not guilty, the information that he did the act in a particular way, or by the use of particular means, could not assist him in the preparation of his defense. Hence, in the legislation of this State, and in the practice of this Court, the rules of the common law, in respect to indictments, have been more and more relaxed as occasion has suggested. Thus it has been held that a description of the weapon is not necessary, (People v. Stevenson, 9 Cal. 273,) and that it is not material to describe the wound, further than to say that it was mortal, or that the [201]*201party died of the wound. (People v. Judd, 10 Cal. 313.) While it may be well to state the means by which death was caused, we do not consider such a course indispensable. The killing is the ultimate and issuable fact, and we can perceive no 'satisfactory reason why the means by which it was done should be stated in every case, and certainly not in a case where the means are unknown. In this case, as yet, the means by which the homicide was committed lie mainly in conjecture. True, the Grand Jury might have multiplied counts until all possible modes and means of inflicting death yet discovered had been described; but to what good purpose ? The defendant, in that case, would have obtained no valuable information. He would have been as little informed as to the real means as he is by the present indictment; and yet the one or the other course must be adopted, where the means are unknown, for the criminal cannot be allowed to escape justice because the precise means by which the crime was committed cannot be discovered.
In the celebrated case of The Commonwealth v. Webster, 5 Cush. 295, the indictment contained four counts. In the first it was alleged that the homicide was committed by stabbing with a knife; in the second by a blow on the head with a hammer; in the third by striking, kicking, beating and throwing on the ground; and in the fourth, “ in some way and manner, and by some means, instruments and weapons, to the jury unknown.” The last count was held to be good on demurrer; and we think the ruling was consistent with reason and not opposed to any rule of law.
H. The Court did not err in instructing the jury that “ in order to convict, circumstantial evidence should be such as to produce nearly the same degree of certainty 'as that which arises from direct testimony, and to exclude a rational probability of innocence.” It was but another mode of telling the jury that, although as a general rule circumstantial evidence, in the nature of things, may not be so entirely satisfactory proof of a fact as the positive testimony of credible [202]*202eye witnesses, yet they must convict, if they were satisfied of the guilt of the defendant to the exclusion of all rational probabilities. There are instances in which circumstantial evidence may be found to produce as strong a conviction of the defendant’s guilt, if not stronger, than could be produced by the most direct and positive testimony; yet it is certainly true, as a general proposition, that the latter is the most satisfactory in the estimation of mankind. The Court did but recognize this general principle while telling the jury that they were bound to find the defendant guilty upon circumstantial evidence, if it was of such a character as to satisfy them of his guilt to the exclusion of any other rational theory, and in doing so the Court seems to have adopted the precise language of the books. (1 Phillips on Evidence, 10th English and 4th American edition, 113 et seq.) If the same absolute certainty of conviction which is generally produced by the direct and positive testimony of credible eye witnesses was required in cases of circumstantial evidence, verdicts of guilty would be rare and murder frequently go unpunished. Where the evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant, but inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye witnesses would have been.
JSTor do we see any substantial objection to the remarks of the Court to the jury in relation to those extreme cases of circumstantial evidence, where there had been convictions, and it had afterwards transpired that the parties were innocent, which had been read to them by counsel for the defendant. Those cases having been read to the jury, and commented upon at length by counsel for the purpose of creating in their minds a distrust of the kind of evidence upon which the prosecution was forced to rely, it was competent for the Court to caution them against the alleged dangerous tendency of circumstantial evidence, claimed by [203]*203counsel to be demonstrated by those cases. The same course was pursued by the Circuit Court of the United States at the trial of Tom Jones (2 Wheeler’s Criminal Law Cases, 461.) In his charge to the jury, Mr. Justice Thompson said : “ A number of cases have been cited and read to show you the dangerous tendency of this kind of proof. It is possible that an innocent person may have suffered, but such cases (if any such there are) could be no objection to this kind of evidence; if jurors were to disregard it, there would be an end to the administration of law and to government.”
When counsel for the defense make a persistent attack upon this kind of proof, and undertake to establish its alleged dangerous tendency by reference to those rare cases where it is shown that innocent persons have been found guilty upon circumstantial evidence, and by such a course may have shaken the confidence of inexperienced jurors in a species of testimony which, notwithstanding all that can be urged against it, is, in the judgment of those most experienced in the investigation of truth and the administration of justice, not unfrequently as entirely satisfactory—if not more so—than the positive testimony of individuals, it is not only competent for the Court, but the Court would stop short of a performance of its duty to the cause of justice if it failed to caution the jury against attaching too much importance to the teachings of such cases, and to remind them of the true character and weight which, as all human experience shows, ought at all times to be accorded to the voiceless yet eloquent testimony of circumstances.
The remarks of Mr. Justice Park, in his charge to the jury in the case of The King v. John Thurtell, are a just and eloquent tribute to the true character of circumstantial evidence, and would not have been out of place in this case. He said: “ The eye of Omniscience can alone see the truth in all cases; circumstantial evidence is there out of the question ; but clothed as we are with the infirmities of human nature, how are we to get at the truth without a concatena[204]*204tion of circumstances ? Though in human judicature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course of one hundred years, that in a few solitary instances, owing to the minute and curious circumstances which sometimes envelop human transactions, error has been committed from a reliance on circumstantial evidence ; yet this species of evidence, in the opinion of all those who are most conversant with the administration of justice and most skilled in judicial proceedings, is much more satisfactory than the testimony of a single individual who swears he has seen a fact committed.” (2 Wheeler’s Crim. L. Ca. 462, note.)
What has been said thus far is also a sufficient answer to the objections made to the charge of the Court upon the subject of reasonable doubts. As we consider, they amount to nothing more than hypercriticism. Doubtless more apt language' could have been employed, but it rarely happens that such is not the case; nor, in view of the circumstances under which charges are given, and the brief space allowed for their consideration and preparation, is it surprising that it should be so. If we were to reverse judgments because we find ourselves able, upon full examination and mature reflection, to improve upon what the Court below has said— which, under like circumstances, doubtless, the Court below could itself do—there would be no end to new trials. We can go no further than to see that the law has not been misrepresented or the jury misled to the prejudice of the defendant.
The instruction of the Court in relation to the credibility of the defendant, who offered himself as a witness, was in all respects legal and proper. We do not agree with the learned counsel for the defendant in holding that it is not competent for the Court to single out a particular witness and charge the jury as to his credibility. On the contrary, the less abstract the more useful the charge. Jurors find but little assistance in the charge of a Judge who deals only in the general and abstract propositions which he supposes to [205]*205be involved in the case, and leaves the jury to apply them as best they may. The application is sometimes more difficult than the statement of the rule; hence, that is the most useful charge in which the Judge takes up separately the theories, or each reasonable hypothesis, advanced by counsel or suggested by the testimony, and applies to it the law. In this way, what otherwise might be obscure to the jury is made clear and easy of comprehension. It seldom happens that the exigencies of a case bring in question the credibility of all the witnesses, and when they do not there can be no reason why the charge upon that subject should be made so general as to embrace them all. In our judgment, such a course would be likely to cast suspicion where none is due, and thus tend to mislead the jury. Hence, the Judge should confine his charge to those whose credibility has been assailed by counsel or is clouded by the circumstances of the case.
In Tom Jones’ Case, supra, a witness was produced, on the part of the prosecution, who had been convicted of larceny, and had been sentenced to the State Prison, and had served out his time, but had been pardoned by the Executive of the State for the purpose of making him a witness against the prisoner. The Court called the attention of the jury to the infamy of his character, and told them that although he had become a competent witness by the force and effect of the pardon of the Executive, yet his credibility was a matter for their consideration, and that they ought not to believe him unless corroborated by other witnesses.
But independent of these general considerations, the statute by which defendants in criminal cases are made competent witnesses in their own behalf expressly sanctions the course pursued in this case. (Statutes 1865-6, p. 865.)
The testimony as to the threats made by the defendant was competent, notwithstanding they were made a long time prior to the commission of the homicide. Testimony of that character was admissible for the purpose of showing malice, and its competency is unaffected by the lapse of [206]*206time, though its weight may be impaired. As was said in the case of The State v. Ford, 3 Strobhart, 517, note, “ remoteness of time, where the party has made declarations pointing to a guilty intention, cannot render the evidence incompetent. For years may roll over a felon’s head while he is arranging his schemes or while the guilty thought conceived in his mind is ripening into the deliberate purpose with which crime is committed.” In that case there had been a lapse of two and four years. To the same effect is the case of Keener v. The State, 18 Geo. 228.
The remaining points do not require special notice.
Judgment affirmed.
Alex. Campbell, and Misha Cook, for Appellant, on petition for rehearing.
The case of The People v. King, 37 Cal. 510, cited in the opinion of the Court, lays down a rule which, we respectfully submit, cannot be carried into effect without subverting fundamental principles which are vital to the protection of life and liberty. Let us see where it leads us. The Court say : “ The only reason assigned by the common law, why the manner and means by which the homicide was committed should be stated in the indictment, was that the defendant might be fully informed as to the case against him, and thereby enabled to prepare for his defense. As we had occasion to remark in the case of The People v. King, 27 Cal. 510, this reason of the common law was but a flimsy pretext, for, if the defendant was guilty, he stood in no need of information; and if not guilty, the information, that he did the act in a particular way, or by the use of particular means, could not assist him in the preparation of his defense.” We assert that this doctrine is as dangerous as it is novel. The assertion, that an innocent man is as well prepared to defend himself when the particulars of the act with which he is charged are withheld from him, as when they are specified in the indictment, refutes itself. The [207]*207“ flimsy pretext ” of. the common law has not only, until very recently in isolated cases, been sanctioned, cherished, and adopted by all wise and good Judges, hut it has lived in the hearts of all just men. "We ask, how can an innocent man, charged generally with murder, defend himself? Is he to come prepared to show that he did not administer poison to the deceased, or choke him to death, or shoot him, or stab him with a knife, or decoy him off a precipice, or lure him to destruction by false lights, or destroy him in any other way whatever, by which death may be effected ? Is he, in the solitude of his prison, perhaps friendless and destitute, to hang over an indictment—useless to him as a means of information—and puzzle his brain in idle conjectures on the nature and character of the accusation ? Is he to be called on to meet one hundred issues, when one, two, or three are all sufficient for the purposes of justice ?
If there is a doubt in the minds of the Grand Jury as to which of two causes may have occasioned death, two counts may be inserted in the indictment, charging two separate modes of committing the offense. This decision gives to the defendant less rights than he would have in a civil ease. If, in a civil action, the complaint avers that plaintiff sold and delivered goods to the defendant, the latter has a right to a bill of particulars, containing the items of the account, so that he may prepare for the trial. If A. seeks to recover from B. property obtained by false pretenses, it is not sufficient for the complaint to allege that B. fraudulently and by false pretenses obtained the property from A.; but the pretenses made, the means by which "the' ultimate fact— the obtaining of the property—was accomplished, must be alleged, and proved as alleged. It is just as rational to say, that the particular pretenses by which the property was obtained .are immaterial, and leave the defendant to grope in the dark to discover what may be proved against him, as to say that it is immaterial to state in an indictment for murder the means by which death was produced. In a criminal case, the defendant has no right to a bill of particu[208]*208lars, but the indictment has, heretofore, been supposed to serve that purpose. We earnestly hope the Court will reconsider the question we have presented, and at least modify the doctrine laid down in People v. King, and indorsed in this case.