By the Court, Sandeeson, C. J.
The objections to the indictment are not well taken. There is some conflict in the decisions in this State as to what must be alleged in an indictment for murder. Some of the cases go so far as to hold that the essential averments of an indictment under our criminal code are the same as at common law, and that therefore a statement of the manner of the death and the means by which it was effected is indispensable. (People v. Wallace, 9 Cal. 30 ; People v. Cox, 9 Cal. 33 ; People v. Lloyd, 9 Cal. 54.) In other cases it has been held that our criminal [510] code changes in many respects the rule of the common law, and dispenses with the statement of many facts and circumstances connected with the killing which were usual and perhaps indispensable at common law. (People v. Stevenson, 9 Cal. 273; People v. Dolan, 9 Cal. 576.) In the former case it was held that a description of the weapon used was not necessary, and it was not material to describe the wound further than by the use of the word mortal, nor the part of the body upon which it was inflicted. And it seems that it is not necessary to aver in terms that the wound was mortal, for if the facts stated show that such was the fact (as that the party died of the wound) the indictment in that respect is sufficient. (People v. Judd, 10 Cal. 313.)
Our criminal code was designed to work the same change in pleading and practice in criminal actions which is wrought by the civil code in civil actions. Both are fruits of the same progressive spirit" which, in modern times, has endeavored at least to do away with the mere forms and technicalities of the common law which were productive of no good, and frequently brought the administration of justice into contempt by defeating its ends. Under the pretense of informing the defendant of the nature of the charge against which he was called upon to defend, it was necessary, at the ancient common law, to describe the means by which the homicide was committed, and the nature and extent of the wound and its precise locality; from which it necessarily followed that a trifling variance between the proof and the allegation frequently defeated a •céhvi'ction, no matter how manifest the guilt of the defendant. It was a long time before legislators and Judges discovered "that thi.s rule.had nothing but the most flimsy pretext to sup•port it. If the defendant is guilty, he stands in need of no information to be derived from a perusal of the indictment, as to the "means used by him in committing the act or the manner in which it was done, for as to both his own knowledge is quite as reliable as any statements contained in the indictment. If he is not guilty, the information could not aid in the preparation of his defense. A disposition to relax much of this [511] ancient strictness in criminal proceedings has manifested itself in modern practice, and in harmony therewith the Legislature of this State has substituted, pi the place of the old, a new system of practice and pleading, which retains all the elements of the former so far as they are made necessary by a due regard for the substantial rights of a defendant, but discards all such elements as serve no good purpose, and only tend to embarrass and defeat the administration of justice. That system provides a few plain and simple rules by which to determine the sufficiency of pleadings, and declares that such rules shall be the test. (Section 235.) Those rules are found in section two hundred and forty-six, and in order to ascertain whether an indictment is sufficient or not, it is only necessary to interrogate it by the light of that section. The present indictment stands this test in every particular: 1. It is entitled in a Court having authority to receive it. 2. It was found by a Grand Jury of the county in which that Court was held. 3. It gives the name of the defendant. 4. It shows that the crime alleged was committed within the jurisdiction of the Court. 5. It declares that the offense was committed at a time prior to that at which the indictment was found. 6. It sets forth the act charged as the offense clearly and distinctly in ordinary and concise language, without repetition and in such a manner that any person can know and understand therefrom what is intended; for it alleges that the defendant—stating his name—at a place named, and at a time mentioned which was prior to the finding of tM>tómcBnenE^x with malice aforethought assaulted one Jame^'Duffy^ and? .dffi | cut and stab the said James Duffy, giving hinlga nfortal wound, f of which he afterwards died on the same dáfjf, gnd^lh&l'eíore 1 ( within a year and a day from the time when tli|) 'mortal thrusfe^ was received, which is all that is necessary toft cfii^ti¿tu|,e'¿iííé offense of murder, and sufficiently identifies the^^^^toi^ara the defendant against a second prosecution, and, as provided in the seventh and last subdivision of the section in question, states the same with sufficient certainty to enable the Court to pronounce a judgment. The indictment is not bad because [512] it does not allege that James Duffy was a human being, nor that he had a body, nor the part of his body upon which the wound was inflicted. The first two never were necessary, and the last is not now, whatever it may have been formerly. If there is any objection to the indictment, it is found in the fact that it designates the degree of the murder. While this does not make the indictment bad, and may be treated as surplusage, still the indictment ought not, because it need not, state the degree of the murder. The trial jury, and not the Grand Jury, determine the degree of the crime, and the former should not be embarrassed by the opinion of the latter.
The Court did not err in disallowing the challenge interposed by the defendant to the juror Jesse Davis upon the ground of implied bias. In order to render a juror incompetent on the ground of implied bias, it must appear that he entertains a fixed and settled conviction of the guilt or innocence of the defendant, or that he has expressed such a conviction. Whatever falls short of this does not amount to an unqualified opinion within the meaning of the statute. Admitting that Davis had formed an opinion—which in view of all his answers taken together is extremely doubtful—it certainly was not an unqualified, but on the contrary, a conditional or qualified opinion. The law upon this branch of the case will be found very fully discussed by Mr. Justice Baldwin, in The People v. Reynolds, 16 Cal. 130. (See also, People v. Williams, 17 Cal. 142 ; and People v. Mahoney, 18 Cal. 180.)
It is next claimed that the Court erred in giving the following instruction:
“ In the case that is now being submitted to you there is no evidence on any points or matters given in proof which reduce the crime charged in the indictment to manslaughter; if the defendant be found guilty, therefore, you cannot consider the question of manslaughter upon the evidence in this case.”
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By the Court, Sandeeson, C. J.
The objections to the indictment are not well taken. There is some conflict in the decisions in this State as to what must be alleged in an indictment for murder. Some of the cases go so far as to hold that the essential averments of an indictment under our criminal code are the same as at common law, and that therefore a statement of the manner of the death and the means by which it was effected is indispensable. (People v. Wallace, 9 Cal. 30 ; People v. Cox, 9 Cal. 33 ; People v. Lloyd, 9 Cal. 54.) In other cases it has been held that our criminal [510] code changes in many respects the rule of the common law, and dispenses with the statement of many facts and circumstances connected with the killing which were usual and perhaps indispensable at common law. (People v. Stevenson, 9 Cal. 273; People v. Dolan, 9 Cal. 576.) In the former case it was held that a description of the weapon used was not necessary, and it was not material to describe the wound further than by the use of the word mortal, nor the part of the body upon which it was inflicted. And it seems that it is not necessary to aver in terms that the wound was mortal, for if the facts stated show that such was the fact (as that the party died of the wound) the indictment in that respect is sufficient. (People v. Judd, 10 Cal. 313.)
Our criminal code was designed to work the same change in pleading and practice in criminal actions which is wrought by the civil code in civil actions. Both are fruits of the same progressive spirit" which, in modern times, has endeavored at least to do away with the mere forms and technicalities of the common law which were productive of no good, and frequently brought the administration of justice into contempt by defeating its ends. Under the pretense of informing the defendant of the nature of the charge against which he was called upon to defend, it was necessary, at the ancient common law, to describe the means by which the homicide was committed, and the nature and extent of the wound and its precise locality; from which it necessarily followed that a trifling variance between the proof and the allegation frequently defeated a •céhvi'ction, no matter how manifest the guilt of the defendant. It was a long time before legislators and Judges discovered "that thi.s rule.had nothing but the most flimsy pretext to sup•port it. If the defendant is guilty, he stands in need of no information to be derived from a perusal of the indictment, as to the "means used by him in committing the act or the manner in which it was done, for as to both his own knowledge is quite as reliable as any statements contained in the indictment. If he is not guilty, the information could not aid in the preparation of his defense. A disposition to relax much of this [511] ancient strictness in criminal proceedings has manifested itself in modern practice, and in harmony therewith the Legislature of this State has substituted, pi the place of the old, a new system of practice and pleading, which retains all the elements of the former so far as they are made necessary by a due regard for the substantial rights of a defendant, but discards all such elements as serve no good purpose, and only tend to embarrass and defeat the administration of justice. That system provides a few plain and simple rules by which to determine the sufficiency of pleadings, and declares that such rules shall be the test. (Section 235.) Those rules are found in section two hundred and forty-six, and in order to ascertain whether an indictment is sufficient or not, it is only necessary to interrogate it by the light of that section. The present indictment stands this test in every particular: 1. It is entitled in a Court having authority to receive it. 2. It was found by a Grand Jury of the county in which that Court was held. 3. It gives the name of the defendant. 4. It shows that the crime alleged was committed within the jurisdiction of the Court. 5. It declares that the offense was committed at a time prior to that at which the indictment was found. 6. It sets forth the act charged as the offense clearly and distinctly in ordinary and concise language, without repetition and in such a manner that any person can know and understand therefrom what is intended; for it alleges that the defendant—stating his name—at a place named, and at a time mentioned which was prior to the finding of tM>tómcBnenE^x with malice aforethought assaulted one Jame^'Duffy^ and? .dffi | cut and stab the said James Duffy, giving hinlga nfortal wound, f of which he afterwards died on the same dáfjf, gnd^lh&l'eíore 1 ( within a year and a day from the time when tli|) 'mortal thrusfe^ was received, which is all that is necessary toft cfii^ti¿tu|,e'¿iííé offense of murder, and sufficiently identifies the^^^^toi^ara the defendant against a second prosecution, and, as provided in the seventh and last subdivision of the section in question, states the same with sufficient certainty to enable the Court to pronounce a judgment. The indictment is not bad because [512] it does not allege that James Duffy was a human being, nor that he had a body, nor the part of his body upon which the wound was inflicted. The first two never were necessary, and the last is not now, whatever it may have been formerly. If there is any objection to the indictment, it is found in the fact that it designates the degree of the murder. While this does not make the indictment bad, and may be treated as surplusage, still the indictment ought not, because it need not, state the degree of the murder. The trial jury, and not the Grand Jury, determine the degree of the crime, and the former should not be embarrassed by the opinion of the latter.
The Court did not err in disallowing the challenge interposed by the defendant to the juror Jesse Davis upon the ground of implied bias. In order to render a juror incompetent on the ground of implied bias, it must appear that he entertains a fixed and settled conviction of the guilt or innocence of the defendant, or that he has expressed such a conviction. Whatever falls short of this does not amount to an unqualified opinion within the meaning of the statute. Admitting that Davis had formed an opinion—which in view of all his answers taken together is extremely doubtful—it certainly was not an unqualified, but on the contrary, a conditional or qualified opinion. The law upon this branch of the case will be found very fully discussed by Mr. Justice Baldwin, in The People v. Reynolds, 16 Cal. 130. (See also, People v. Williams, 17 Cal. 142 ; and People v. Mahoney, 18 Cal. 180.)
It is next claimed that the Court erred in giving the following instruction:
“ In the case that is now being submitted to you there is no evidence on any points or matters given in proof which reduce the crime charged in the indictment to manslaughter; if the defendant be found guilty, therefore, you cannot consider the question of manslaughter upon the evidence in this case.”
This instruction is not a little obscure, and if it was given as represented in the transcript, it is quite possible that the jury may have found some difficulty in determining its exact [513] meaning. The record does not contain the evidence, or any part thereof, and we cannot, therefore, read the instruction in the light of the testimony, in view of which it was given, but are forced to determine its meaning by its own terms. If there was any evidence before the jury tending, however slightly, to reduce the homicide to the grade of manslaughter, this instruction was erroneous. If the expression “there is no evidence on any points or matters given in proof,” is to be understood as admitting that there were “ points and matters given in proof” which, if true, would reduce the offense to manslaughter, but declaring the evidence as to such points or matters to be insufficient to warrant the jury in finding them to be true, it was erroneous, because it assumed to pass upon the weight of evidence, which, under our Constitution, is left entirely to the jury, and in regard to which the Judge, contrary to the rule of common law, is not allowed to express an opinion. On the other hand, if there was a total absence of all testimony as to such facts and circumstances as would, under the law, reduce the offense from murder to manslaughter, and the instruction is to be understood as declaring such to be the case, then it was not erroneous, because Judges, although not allowed to charge juries with respect to matters of fact may state the testimony and declare the law. (Sec. 17, Art. VI, of the Constitution.) At common law a Judge is allowed to express his opinion as to the weight of evidence. (Commonwealth v. Child, 10 Pick. 252.) In this respect the constitutional provision referred to was intended to change the rule so as to leave the weight of the evidence entirely to the jury ; but Judges may still, as formerly, state what facts are in evidence and what are not; or in other words they may state the evidence pro and con, in view of which the existence of certain facts is affirmed or denied, which includes the right to state to the jury that there is no evidence as to particular facts or issues, when such is the case. Counsel for defendant seem to have understood the Judge as instructing the jury that there was no evidence as to facts which, under the law, would reduce the offense charged to manslaughter, and to have ex[514] cepted to the instruction upon that ground, so understood— there being no evidence of the character in question—the instruction was not erroneous.
It is proper, however, to add, in this connection, that in the absence of any statement or bill of exceptions embodying the evidence, or declaring its purport or tendency, so far as may be necessary to point the exception, we must presume in favor of the action of the Court below, upon the principle that the party who alleges error must show it. This, however, must be taken with the qualification that where the action of the Court below is manifestly erroneous under any and every conceivable state of facts, this Court will review it, notwithstanding the evidence may not have been brought up. [The People v. Levisen, 16 Cal. 98.)
It appears, from the instructions given by the Judge of his own motion, that there was evidence before the jury tending to prove that the defendant was intoxicated at the time the homicide was committed. In view of this evidence certain instructions were asked on the part of the defense to the effect that so far as the degree of murder is concerned no presumption arises from the mere fact of the killing considered apart from the means used and the circumstances under which it occurred; and that in determining the question of premeditation it was proper for the jury to take into account the defendant’s condition, as drunk or sober. These instructions were evidently taken from the case of The People v. Belencia, 21 Cal. 544, and ought therefore to have been given, unless already given in substance, for as to the law of that case there can be no question. Where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration or the attempt to perpetrate arson, rape, robbery, or burglary, the degree of the offense depends entirely upon the question whether the killing was wilful, deliberate, and premeditated, and upon that question it is proper for the jury to consider evidence of intoxication, if such there be, not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon [515] the ground that the condition of the defendant’s mind, at the time the act was committed, must be inquired after in order to justly determine the question as to whether his mind was capable of that deliberation or premeditation which, according as they are absent or present, determine the degree of the crime.
The Court below does not seem to have questioned the law of the defendant’s instructions, but refused to give them upon the ground that they had been already given in substance. Upon inspection of the instructions given by the Court, we are satisfied that the law, as declared in the instructions under consideration had already been given in language, perhaps, better adapted to the comprehension of the jury, and hence the ruling of the Court was not erroneous. We add, however, that in such cases it is better to give the instructions asked, than to refuse, for by such refusal a pretext is afforded for an appeal which otherwise, perhaps, would not be taken.
The judgment is affirmed and the Court below directed to appoint a day for the execution.