McKee, J.
The defendant was charged with the larceny of five head of cattle, the property of John Trimble. At the trial, the prosecution gave evidence tending to prove that the defendant was captured in the night-time, driving away Trimble’s cattle, and also a steer belonging to one Charles Wade. On his defense, the defendant gave evidence tending to show that he innocently came to the possession of Trimble’s cattle, by purchase from one Carmel, who had them on pasture for the owner. In rebuttal, the court, against the objections of the defendant, admitted in evidence the testimony of Wade, to show that the steer which belonged to him, and was found in the defendant’s possession with Trimble’s cattle, was stolen. It was objected that this testimony was not admissible, because it was not rebuttal, and because it tended to prove a distinct offense from that for which the defendant was on trial; and these- constitute the objections which have been argued on appeal. We think the evidence was admissible. This was settled in People Robles, 34 Cal. 591, and in People v. Lopez, 59 Cal. 362.
The first of these cases was a criminal action for the larceny of two hundred and fifty sheep, the property of one Reynolds; and among them, when taken, were a number of other sheep belonging to one Wheeler, which were driven off and sold with Reynolds’ sheep by the same parties. Over the objections of the defendant, the testimony of Wheeler was admitted, to show that his sheep had also been stolen; and the Supreme Court held that, under the circumstances, the testimony was admissible. “ It was,” said the court, “ not evidence of a distinct felony committed by the parties at the same time. * ® * The sheep were herded together, were driven off together by the same parties, and sold together by the parties driving them off. There was but one act. If Wheeler’s sheep were stolen, this fact afforded some ground for an inference, nothing to the contrary appearing, that all taken at the same time, and under the same conditions and circumstances, were stolen.” So in the Lopez Case, it was held by this court that testimony which tended to prove the disappearance of other horses from the same neighborhood at the same time as the mare and colt, with the larceny of which the defendant was charged, and were all found in the defendant’s possession, was admissible to show a guilty purpose in the taking of the mare and colt.
[670]*670Upon the authority of those cases, the ruling of the lower court was undoubtedly correct, and we think it was based upon principle. When the defendant rested upon the evidence given in his defense, the fact whether he took and drove away Trimble’s cattle with a guilty purpose was before the jury upon conflicting evidence, and, as the fact was directly in issue, and one of the material facts in the case which the state was bound to prove, the state had the right to rebut the defendant’s evidence as to that fact by any relevant testimony; that is, by any testimony which had a legal tendency to prove the fact. If the evidence offered tended to prove the, fact, or, in other words, to overcome the defendant’s evidence as to it, it was admissible for that purpose, although it may also have tended to prove the commission of another distinct and separate offense. The principle is, that all the evidence admitted must be pertinent to the point in issue ; but if it be pertinent to this point, and tends to prove the crime alleged, it is not to be rejected, though it also tends to prove the commission of other crimes. -i*
“ It frequently happens,” says Brockenborough, J., in Walker v. Com., 1 Leigh, 574, “ that, as the evidence of circumstances must be resorted to for the purpose of proving the commission of the particular offense charged, the proof of those circumstances involves the proof of other acts, either criminal or apparently innocent. In such cases, it is proper that the chain of evidence should be unbroken. If one or more links of that chain consist of circumstances which tend to prove the prisoner has been guilty of other crimes than that charged, this is no reason why the court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced in evidence that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances should exclude them, more than other facts apparently innocent.” So said Lord Ellenborough, in delivering the opinion of the court, in The King v. Whiley, 1 Lead. Crim. Cas. 185 : “ If several and distinct offenses do intermix and blend themselves with each other, the detail of the party’s whole conduct must be pursued. There is a case where a man committed, three burglaries in one night, and stole a shirt at one place and left it at another; and they were [671]*671all so connected that the court heard the history of the three different burglaries.”
The test of the admissibility of evidence of other offenses than the one charged, is the connection between the offenses in the mind of the criminal. When such a connection is shown, evidence of the others is admissible for the purpose of establishing identity in developing the res gestæ, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial. If, however, the evidence of another offense serves in no way to identify the thing stolen, or connect the defendant with the offense for which he is on trial, it forms no part of the res gestæ; and all evidence of a distinct offense, unconnected in character and purpose with the offense charged, is inadmissible. (Galbraith v. State, 41 Tex. 569. See 2 Russ. Cr. 744; Whart. Crim. Law, 649.)
But, in the case under consideration, the offense with which Ahe defendant was charged, and that which the offered evidence " tended to prove, constituted, as the court said in Robles’ Case, “ one act that is, the taking and driving away of cattle belonging to two separate and distinct owners, at one and the same time, from the same place, under the same circumstances, and with the same intent; and although it may have tended to prove two offenses, yet, as they were part of one entire transaction, evidence of the one was admissible to show the character of the other. This principle, although an exception to the general rule as to the admissibiltiy of proof of the commission of distinct offenses, is applicable alike in the trials of all criminal actions. Numerous cases to that effect were referred to and commented on in the recent case of People v. Gray, ante, 271. And the principle was held applicable by the Supreme Court of Pennsylvania to a trial for murder. Said the court:
“ That the commission of a distinct offense, even similar in character, cannot be given in evidence against the prisoner, was held in Shaffner v. Commonwealth, 72 Pa. St. 60. But when two persons are murdered at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the ' same transaction or res gestee, the death of the one, and surrounding circumstances, may be given in evidence upon the trial [672]*672of the prisoner for the murder of the other, not as an independent crime, but as tending to show that the motive was one and the same which led to the murder of both at the same time. Being part of the same res gestee,
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McKee, J.
The defendant was charged with the larceny of five head of cattle, the property of John Trimble. At the trial, the prosecution gave evidence tending to prove that the defendant was captured in the night-time, driving away Trimble’s cattle, and also a steer belonging to one Charles Wade. On his defense, the defendant gave evidence tending to show that he innocently came to the possession of Trimble’s cattle, by purchase from one Carmel, who had them on pasture for the owner. In rebuttal, the court, against the objections of the defendant, admitted in evidence the testimony of Wade, to show that the steer which belonged to him, and was found in the defendant’s possession with Trimble’s cattle, was stolen. It was objected that this testimony was not admissible, because it was not rebuttal, and because it tended to prove a distinct offense from that for which the defendant was on trial; and these- constitute the objections which have been argued on appeal. We think the evidence was admissible. This was settled in People Robles, 34 Cal. 591, and in People v. Lopez, 59 Cal. 362.
The first of these cases was a criminal action for the larceny of two hundred and fifty sheep, the property of one Reynolds; and among them, when taken, were a number of other sheep belonging to one Wheeler, which were driven off and sold with Reynolds’ sheep by the same parties. Over the objections of the defendant, the testimony of Wheeler was admitted, to show that his sheep had also been stolen; and the Supreme Court held that, under the circumstances, the testimony was admissible. “ It was,” said the court, “ not evidence of a distinct felony committed by the parties at the same time. * ® * The sheep were herded together, were driven off together by the same parties, and sold together by the parties driving them off. There was but one act. If Wheeler’s sheep were stolen, this fact afforded some ground for an inference, nothing to the contrary appearing, that all taken at the same time, and under the same conditions and circumstances, were stolen.” So in the Lopez Case, it was held by this court that testimony which tended to prove the disappearance of other horses from the same neighborhood at the same time as the mare and colt, with the larceny of which the defendant was charged, and were all found in the defendant’s possession, was admissible to show a guilty purpose in the taking of the mare and colt.
[670]*670Upon the authority of those cases, the ruling of the lower court was undoubtedly correct, and we think it was based upon principle. When the defendant rested upon the evidence given in his defense, the fact whether he took and drove away Trimble’s cattle with a guilty purpose was before the jury upon conflicting evidence, and, as the fact was directly in issue, and one of the material facts in the case which the state was bound to prove, the state had the right to rebut the defendant’s evidence as to that fact by any relevant testimony; that is, by any testimony which had a legal tendency to prove the fact. If the evidence offered tended to prove the, fact, or, in other words, to overcome the defendant’s evidence as to it, it was admissible for that purpose, although it may also have tended to prove the commission of another distinct and separate offense. The principle is, that all the evidence admitted must be pertinent to the point in issue ; but if it be pertinent to this point, and tends to prove the crime alleged, it is not to be rejected, though it also tends to prove the commission of other crimes. -i*
“ It frequently happens,” says Brockenborough, J., in Walker v. Com., 1 Leigh, 574, “ that, as the evidence of circumstances must be resorted to for the purpose of proving the commission of the particular offense charged, the proof of those circumstances involves the proof of other acts, either criminal or apparently innocent. In such cases, it is proper that the chain of evidence should be unbroken. If one or more links of that chain consist of circumstances which tend to prove the prisoner has been guilty of other crimes than that charged, this is no reason why the court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced in evidence that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances should exclude them, more than other facts apparently innocent.” So said Lord Ellenborough, in delivering the opinion of the court, in The King v. Whiley, 1 Lead. Crim. Cas. 185 : “ If several and distinct offenses do intermix and blend themselves with each other, the detail of the party’s whole conduct must be pursued. There is a case where a man committed, three burglaries in one night, and stole a shirt at one place and left it at another; and they were [671]*671all so connected that the court heard the history of the three different burglaries.”
The test of the admissibility of evidence of other offenses than the one charged, is the connection between the offenses in the mind of the criminal. When such a connection is shown, evidence of the others is admissible for the purpose of establishing identity in developing the res gestæ, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial. If, however, the evidence of another offense serves in no way to identify the thing stolen, or connect the defendant with the offense for which he is on trial, it forms no part of the res gestæ; and all evidence of a distinct offense, unconnected in character and purpose with the offense charged, is inadmissible. (Galbraith v. State, 41 Tex. 569. See 2 Russ. Cr. 744; Whart. Crim. Law, 649.)
But, in the case under consideration, the offense with which Ahe defendant was charged, and that which the offered evidence " tended to prove, constituted, as the court said in Robles’ Case, “ one act that is, the taking and driving away of cattle belonging to two separate and distinct owners, at one and the same time, from the same place, under the same circumstances, and with the same intent; and although it may have tended to prove two offenses, yet, as they were part of one entire transaction, evidence of the one was admissible to show the character of the other. This principle, although an exception to the general rule as to the admissibiltiy of proof of the commission of distinct offenses, is applicable alike in the trials of all criminal actions. Numerous cases to that effect were referred to and commented on in the recent case of People v. Gray, ante, 271. And the principle was held applicable by the Supreme Court of Pennsylvania to a trial for murder. Said the court:
“ That the commission of a distinct offense, even similar in character, cannot be given in evidence against the prisoner, was held in Shaffner v. Commonwealth, 72 Pa. St. 60. But when two persons are murdered at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the ' same transaction or res gestee, the death of the one, and surrounding circumstances, may be given in evidence upon the trial [672]*672of the prisoner for the murder of the other, not as an independent crime, but as tending to show that the motive was one and the same which led to the murder of both at the same time. Being part of the same res gestee, they, together, tend to throw light on each other, and there is no reason that the truth should be thrown out by excluding the evidence objected to.” (Brown v. Commonwealth, 76 Pa. St. 337._)
The cases of People v. Hartman, 62 Cal. 562, and People v. Wood, 12 Pac. C. L. J. 147, are not in any respect opposed to the principle upon which such evidence is admissible. The first of these cases was decided upon the fact that the evidence introduced at the trial tended to show that “.the defendant had at another time stolen other property than that described in the indictment ”; and the second, upon the fact that the evidence tended to show “ other independent transactions * * * similar in character to the one which constitutes the basis of the charge on which the defendant was tried and convicted.” So that in neither of those cases was there any connection in time, or place, or circumstances, or intent, between the offense charged and the.offense which the evidence tended to prove; therefore, the evidence in each was properly held inadmissible.
Upon the admissions of the defendant’s counsel, there was no error in overruling the objections made to the admission of the testimony of Fisher, a witness who had testified on the preliminary examination of the defendant by the committing magistrate. (Sub. 8, § 1870, Code Civil Proc.)
There is no prejudicial error in the record. Judgment and order affirmed. .
Morrison, C. J., concurred in the judgment.
Myrick, J., concurred in all, except so far as the case of People v. Wood is approved.