It is a fundamental rule that the accused must be apprised with reasonable certainty of the nature of the accusation against him. U.S. v. Cruikshank, 92 U.S. 542; U.S. v. Simmons, 96 U.S. 360; U.S. v. Carll, 105 U.S. 611; U.S. v. Hess, 124 U.S. 483, 8 S.Ct. 571. But, as has been said by SANDERSON, J., in People v. King, 27 Cal. 507: 'Under the pretense of informing the defendant of the nature of the charge against which he was called 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 conviction, no matter how manifest the guilt of the defendant.
( Id., § 392, p. 303.) An error in instructions which precluded conviction of a lesser offense was recognized as a basis for reversal under those provisions ( People v. King (1865) 27 Cal. 507, 512-513), and under the provisions of the Penal Code of 1872 which supplanted them. ( People v. Comyns (1896) 114 Cal. 107, 111-112 [45 P. 1034]; People v. Stofer (1906) 3 Cal.App. 416, 418 [ 86 P. 734].)
For centuries the system `aided criminals in escaping the penalty of crime, to the great reproach of the law, without affording any assistance in the administration of justice.' * * * "* * * Over sixty years ago the Supreme Court of California, in People v. King, supra [ 27 Cal. 507, 87 Am. Dec. 95], said: `A disposition to relax much of this ancient strictness in criminal proceedings has manifested itself in modern practice, and in harmony therewith the Legislature of this state has substituted, in 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.
The rule announced in State v. Lundhigh, supra, finds support in the cases from other jurisdictions. California: People v. Cronin, 34 Cal. 191; People v. Weaver, 47 Cal. 106; People v. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Herbert, 6 Cal. (2d) 541, 58 P.2d 909. Arizona: Molina v. Territory, 12 Ariz. 14, 95 P. 102; Macias v. State, 39 Ariz. 303, 6 P.2d 423; Collins v. State, 37 Ariz. 353, 294 P. 625; Asbill v. State, 19 Ariz. 499, 172 P. 658; Shaughnessy v. State, 43 Ariz. 445, 32 P.2d 337; Marquez v. State, 13 Ariz. 135, 108 P. 258; Guiterrez v. State, 44 Ariz. 114, 34 P.2d 395; Arkansas: Bramlett v. State, 184 Ark. 808, 43 S.W.2d 364; Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049, 83 A.L.R. 426; State v. Delong, 89 Ark. 391, 117 S.W. 524. New Mexico: State v. Roy, 40 N.M. 397, 60 P.2d 646. Montana: State v. Nielson, 38 Mont. 451, 100 Pac. 229; State v. Louie Won, 76 Mont. 509, 248 P. 201; State v. Gondeiro, 82 Mont. 530, 268 P. 507; Nevada: State v. McLane, 15 Nev. 345. Virginia: Hurd v. Commonwealth, 159 Va. 880, 885, 165 S.E. 536; Bausell v. Commonwealth, 165 Va. 669, 181 S.E. 453, 459. Colorado: Ryan v. People, 50 Colo. 102, 114 Pac. 306, Ann. Cas. 1912B, 1232.
For centuries the system "aided criminals in escaping the penalty of crime, to the great reproach of the law, without affording any assistance to the administration of justice." ( People v. Cronin, 34 Cal. 191. ) Illustrating this, the supreme court of California, in People v. King, 27 Cal. 507, 87 Am. Dec. 95, said: "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 conviction, no matter how manifest the guilt of the defendant." To obviate this condition the English Parliament over seventy-five years ago passed an "Act for further improving the Administration of Criminal Justice."
Section 22 of the Penal Code provides that "whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree or crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act"; and it has been repeatedly held that in a trial for murder the jury, in determining whether there was that "willful, deliberate, and premeditated killing" which constitutes murder in the first degree, may consider the fact that the accused at the time of the homicide was intoxicated. A few of the cases to this point are the following: People v. Valencia , 21 Cal. 544; People v. King , 27 Cal. 507; People v. Ferris , 55 Cal. 588; People v. Jones , 63 Cal. 168; People v. Bruggy , 93 Cal. 476; People v. Vincent , 95 Cal. 436; People v. Lane , 100 Cal. 379. The attorney general admits that the instruction is upon its face correct, and that it should be given in cases where the facts warrant it, but he claims that in the case at bar there was no sufficient evidence of the intoxication of the appellant at the time of the homicide to make the instruction applicable.
Such instruction invaded the province of the jury. (People v. King , 27 Cal. 507; 87 Am. Dec. 95.) J.
(People v. Williams, supra;People v. Jones , 63 Cal. 169; People v. Ferris , 55 Cal. 592.) Evidence of intoxication to determine the degree of guilt must be received with great caution. (People v. Lewis , 36 Cal. 531; People v. Vincent , 95 Cal. 428; People v. Belencia , 21 Cal. 544; People v. King , 27 Cal. 507; Kenny v. People , 31 N.Y. 330; Jones v. Commonwealth , 75 Pa. St. 403; Swan v. State, 4 Humph. 136; Pirtle v. State, 9 Humph. 663; State v. Tatro , 50 Vt. 483; Hopt v. People , 104 U.S. 631.) There was no error in refusing the instructions proposed by defendant.
) The court erred in refusing defendant's proposed instructions 50, 51, and 52, relating to the letter purporting to have accompanied the alleged forged draft, to the effect that the failure of the prosecution to introduce rebutting evidence made it the jury's duty to consider the letter as written and signed by Wootton, as the letter was in evidence and defendant was entitled to an instruction on the point. (Davis v. Russell , 52 Cal. 611; 28 Am. Rep. 647; Sperry v. Spaulding , 45 Cal. 544; People v. Taylor , 36 Cal. 255; People v. Byrnes , 30 Cal. 206; People v. Gilbert , 60 Cal. 111; People v. King , 27 Cal. 507; 87 Am. Dec. 95; People v. Atherton , 51 Cal. 498.) It was error to refuse defendant's proposed instructions 53, 54, and 55, as to a notary's being a public office, and as to the presumption arising from his certificate.
Greater liberality is now allowed in criminal pleadings than was formerly permissible. As was said in People v. King , 27 Cal. 507, 87 Am. Dec. 95: "Our criminal code is 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." The Penal Code itself declares that no indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.