McFarland, J.
The defendant was charged with the murder of one Eugene Mason, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial.
It is not seriously urged that the evidence introduced is insufficient to justify the verdict, or that the court committed any material error in the matter of instructing the jury; but it is contended that there should be a reversal on account of certain errors claimed to have been committed by the court during the progress of the [174]*174trial in ruling upon the admissibility of evidence. These alleged errors could and should have been avoided; but criminal cases are too often conducted upon the preconceived theory that defendant is guilty, aud that if he be given a fair trial, according to the established rules of evidence, the jury may not convict hi in. Hence embarrassing questions are frequently presented on appeal unnecessarily caused by want of ordinary care and due consideration of the rights of the accused on the part of those who conduct the trial in the court below. The purpose of a criminal trial is to discover and determine whether or not a defendant is guilty; not merely to maintain, at all hazards, a theory of guilt entertained beforehand by any one man or any community of men.
An examination of the points made in the brief of appellant show that one or two of the rulings of the court complained of were clearly erroneous, and that others, whether strictly erroneous or not, are not to be commended; but we think that it sufficiently appears that said rulings did not prejudice the appellant, or injuriously affect his substantial rights. We will notice them in detail.
1. Mrs. Mary Steele was a witness for the prosecution, and testified that an hour or two after the commission of the homicide the appellant came to her house and made some incriminating statements to her about the homicide. On cross-examination she testified that Mr. Wyatt, one of appellant’s attorneys, had called upon her and asked her what she knew about the case; and counsel for appellant asked her if she had “ refused to give him any information?” An objection by the prosecution to this question was sustained. This ruling was clearly erroneous. As tending to prove bias and feeling of the witness against appellant, it was entirely legitimate to show upon her cross-examination that, while she had evidently informed the prosecution of her knowledge, she refused to give any information to the appellant. But, notwithstanding the erroneous ruling [175]*175the witness immediately went on, without further objection, and said; “I did not give him any information, and did hot tell him why I would not give him any; I told him positively I would not tell him anything.” This was an answer to the question asked by appellant’s counsel; and it is apparent, therefore, that appellant was not prejudiced by the former ruling. (It seems that this witness had been “ ordered” not to speak of the case to the appellant’s attorneys, under the mistaken notion which some prosecuting officers have that they can order persons whom they want as witnesses not to speak to other persons about what they know.)
2, The same witness (Mrs. Steele) had testified in chief that the statements made to her by appellant were made while he was eating supper at her house; and she was asked on cross-examination: “Did Shaw ever take a meal at your house before?” Objection was made to the question and it was sustained. It would, no doubt, have been proper and fair to have allowed an answer to this question. It was a small matter, and we can hardly see why the prosecution should have objected to it. But we cannot say that the ruling was absolutely erroneous. Appellant’s counsel here, now, argue correctly that it was admissible for him to show that the witness and the appellant were not intimate acquaintances, because it would be improbable that he made to a comparative stranger the incriminating statements testified to by the witness. But the question ruled out was an isolated question; its purpose was not disclosed; there was no intimation that it was asked to show want of intimacy; and upon its face it was apparently irrelevant and immaterial, and asked without any legitimate aim in view. Therefore we do not think the exclusion of the question was under the circumstances erroneous. And the same may he said of another question asked this witness which was ruled out, namely: “ Did you on that occasion request him [appellant] to perform ‘some service for you’? ” the occasion being the morning after the homicide when the witness had seen the appellant.
[176]*1763. Appellant’s wife was a witness for him, and on cross-examination she was asked: “ What have you done with the pistol with which your husband killed Mason?” To the question appellant objected, and his objection was overruled. She answered: “ I turned it over to Mr. Wyatt, one of the attorneys.” Conceding that this question was not proper cross-examination, or was inadmissible on other grounds, it is apparent that the question and answer could have done appellant no injury. It was admitted that appellant did kill deceased with a pistol.
4. The refusal of the court to adjourn the trial of the cause from the middle of the afternoon until the next day -was not, under the circumstances, an abuse of discretion.
5. When appellant was testifying on his own behalf he stated that on the evening of the homicide he went to Paso Robles, and his counsel asked him: “ For what purpose did you go to Paso Robles?” The district attorney objected to the question; and appellant’s counsel .stated to the court that he desired to show that appellant, immediately after the shooting, went to Paso Robles for the purpose of surrendering himself to the officers, but that acting on the advice of a Mr. Korn he returned home and waited for the officers to come after him. The court sustained the objection. This question might well have been allowed; and in many cases the refusal to allow such a question would be material error. But in the case at bar there was no evidence, or pretense, that appellant attempted flight, and, therefore, he could not have been prejudiced by the rejection of the testimony. The same may be said of the rejection by the court of the offered testimony of said Korn to the effect that he advised appellant not to surrender himself at Paso Robles.
6. We do not think that the alleged misconduct of the district attorney, in saying what he did about appellant’s drinking beer, was of importance enough to be seriously considered as a ground of reversal. Neither [177]*177is there any importance to he attached to the fact that the district attorney was allowed to ask appellant how many times his attorneys visited him.
7. The most serious question in the case arises out of the refusal of the court to allow appellant to recall the people’s witness, Christopher, for the purpose of laying a foundation for showing that he had made a certain statement contradictory of a part of his testimony. The shooting which resulted in the death of the deceased took place about eighty or one hundred yards from the house of said Christopher, who testified to the circumstances of the shooting and said that he stood in his yard and had an unobstructed view of both of the men.
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McFarland, J.
The defendant was charged with the murder of one Eugene Mason, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial.
It is not seriously urged that the evidence introduced is insufficient to justify the verdict, or that the court committed any material error in the matter of instructing the jury; but it is contended that there should be a reversal on account of certain errors claimed to have been committed by the court during the progress of the [174]*174trial in ruling upon the admissibility of evidence. These alleged errors could and should have been avoided; but criminal cases are too often conducted upon the preconceived theory that defendant is guilty, aud that if he be given a fair trial, according to the established rules of evidence, the jury may not convict hi in. Hence embarrassing questions are frequently presented on appeal unnecessarily caused by want of ordinary care and due consideration of the rights of the accused on the part of those who conduct the trial in the court below. The purpose of a criminal trial is to discover and determine whether or not a defendant is guilty; not merely to maintain, at all hazards, a theory of guilt entertained beforehand by any one man or any community of men.
An examination of the points made in the brief of appellant show that one or two of the rulings of the court complained of were clearly erroneous, and that others, whether strictly erroneous or not, are not to be commended; but we think that it sufficiently appears that said rulings did not prejudice the appellant, or injuriously affect his substantial rights. We will notice them in detail.
1. Mrs. Mary Steele was a witness for the prosecution, and testified that an hour or two after the commission of the homicide the appellant came to her house and made some incriminating statements to her about the homicide. On cross-examination she testified that Mr. Wyatt, one of appellant’s attorneys, had called upon her and asked her what she knew about the case; and counsel for appellant asked her if she had “ refused to give him any information?” An objection by the prosecution to this question was sustained. This ruling was clearly erroneous. As tending to prove bias and feeling of the witness against appellant, it was entirely legitimate to show upon her cross-examination that, while she had evidently informed the prosecution of her knowledge, she refused to give any information to the appellant. But, notwithstanding the erroneous ruling [175]*175the witness immediately went on, without further objection, and said; “I did not give him any information, and did hot tell him why I would not give him any; I told him positively I would not tell him anything.” This was an answer to the question asked by appellant’s counsel; and it is apparent, therefore, that appellant was not prejudiced by the former ruling. (It seems that this witness had been “ ordered” not to speak of the case to the appellant’s attorneys, under the mistaken notion which some prosecuting officers have that they can order persons whom they want as witnesses not to speak to other persons about what they know.)
2, The same witness (Mrs. Steele) had testified in chief that the statements made to her by appellant were made while he was eating supper at her house; and she was asked on cross-examination: “Did Shaw ever take a meal at your house before?” Objection was made to the question and it was sustained. It would, no doubt, have been proper and fair to have allowed an answer to this question. It was a small matter, and we can hardly see why the prosecution should have objected to it. But we cannot say that the ruling was absolutely erroneous. Appellant’s counsel here, now, argue correctly that it was admissible for him to show that the witness and the appellant were not intimate acquaintances, because it would be improbable that he made to a comparative stranger the incriminating statements testified to by the witness. But the question ruled out was an isolated question; its purpose was not disclosed; there was no intimation that it was asked to show want of intimacy; and upon its face it was apparently irrelevant and immaterial, and asked without any legitimate aim in view. Therefore we do not think the exclusion of the question was under the circumstances erroneous. And the same may he said of another question asked this witness which was ruled out, namely: “ Did you on that occasion request him [appellant] to perform ‘some service for you’? ” the occasion being the morning after the homicide when the witness had seen the appellant.
[176]*1763. Appellant’s wife was a witness for him, and on cross-examination she was asked: “ What have you done with the pistol with which your husband killed Mason?” To the question appellant objected, and his objection was overruled. She answered: “ I turned it over to Mr. Wyatt, one of the attorneys.” Conceding that this question was not proper cross-examination, or was inadmissible on other grounds, it is apparent that the question and answer could have done appellant no injury. It was admitted that appellant did kill deceased with a pistol.
4. The refusal of the court to adjourn the trial of the cause from the middle of the afternoon until the next day -was not, under the circumstances, an abuse of discretion.
5. When appellant was testifying on his own behalf he stated that on the evening of the homicide he went to Paso Robles, and his counsel asked him: “ For what purpose did you go to Paso Robles?” The district attorney objected to the question; and appellant’s counsel .stated to the court that he desired to show that appellant, immediately after the shooting, went to Paso Robles for the purpose of surrendering himself to the officers, but that acting on the advice of a Mr. Korn he returned home and waited for the officers to come after him. The court sustained the objection. This question might well have been allowed; and in many cases the refusal to allow such a question would be material error. But in the case at bar there was no evidence, or pretense, that appellant attempted flight, and, therefore, he could not have been prejudiced by the rejection of the testimony. The same may be said of the rejection by the court of the offered testimony of said Korn to the effect that he advised appellant not to surrender himself at Paso Robles.
6. We do not think that the alleged misconduct of the district attorney, in saying what he did about appellant’s drinking beer, was of importance enough to be seriously considered as a ground of reversal. Neither [177]*177is there any importance to he attached to the fact that the district attorney was allowed to ask appellant how many times his attorneys visited him.
7. The most serious question in the case arises out of the refusal of the court to allow appellant to recall the people’s witness, Christopher, for the purpose of laying a foundation for showing that he had made a certain statement contradictory of a part of his testimony. The shooting which resulted in the death of the deceased took place about eighty or one hundred yards from the house of said Christopher, who testified to the circumstances of the shooting and said that he stood in his yard and had an unobstructed view of both of the men. Appellant called a witness named Eubanks, who testified that he knew Christopher, and had a conversation with him regarding the shooting; and he was then asked: “ Did he [Christopher] inform you where he stood when the shooting took place?” To this the district attorney objected on the ground that “ no predicate had been laid for the impeachment of Mr. Christopher,” and the objection was sustained. Counsel for appellant then said: If the court so rules I desire to have the privilege of recalling Mr. Christopher to lay the foundation. Our attention was just called to this information. We intend to show by this witness that Mr. Millard Christopher told him that he stood right in the barn at the time the shooting took place. It has taken us by surprise; we have just ascertained this information, and we ask the court to be allowed to recall Mr. Christopher for the purpose of laying the predicate.” The court denied this request and appellant excepted. The request was certainly not an unreasonable one; and we apprehend that most courts would have allowed it. But it was a matter of discretion of the trial court, and the question here is whether there was such a gross abuse of discretion as to warrant a reversal; and that depends, in great measure, upon the character and importance of the testimony of Christopher. If the fact that appellant shot the deceased and thereby caused his death had been [178]*178an issue, and Christopher had been the main witness testifying to the shooting, then the judgment would have to be reversed for the said action of the court now under review. But the fact of the shooting was admitted and testified to by the appellant, who claimed that he shot the deceased, Mason, under reasonable apprehension of danger to his own life; and the circumstances of the shooting were testified to in detail by the witness Richardson, who was traveling with appellant at the time, was much nearer the scene of action than Christopher, and had much better opportunity than the latter for closely observing what occurred, and, although called by the prosecution, was evidently not unfriendly to the appellant. And upon examination of the testimony of Christopher we do not perceive that it was in any important sense inconsistent with the testimony of Richardson. It is apparent, therefore, we think, that no substantial right of appellant was affected by the refusal to allow Christopher to be recalled at the time appellant made said request. It does not appear that he was in attendance on the court at that time. Moreover Christopher was afterward recalled as a witness by the prosecution; and when he was on the witness stand the appellant did not then offer to ask him about his statement- to Eubanks. Under these circumstances, while we do not at all approve the court’s refusal to allow Christopher to be recalled at appellant’s said request, we cannot say that such refusal is sufficient ground for a reversal of the judgment.
The judgment and order appealed from are affirmed.
HARRISON, J., Garoutte, J., and Van Fleet, J., concurred.
Temple, J., dissented.