JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
By the Court, Sanderson, J., on petition for rehearing:
It is important that what are material and what immaterial averments in an indictment for murder should be finally settled, if not already so; and we are not sorry that counsel have assailed the doctrine announced in King's Case , 27 Cal. 510, and in this, for we are thus afforded a speedy opportunity of repeating that in our judgment the reason assigned by the common law why the manner and means by which the homicide was committed should be stated in the indictment was without any substantial foundation, and that under our system of criminal practice and pleading the rule of the common law in that respect has been wisely abolished. For centuries it aided criminals in escaping the penalty of crime, to the great reproach of the law, without affording any assistance in the administration of justice.
From the start this Court has uniformly held, in respect to indictments generally, that they are sufficient, in matter of averment, if they allege all the acts, or facts which have been used by the Legislature in defining the particular offense charged. It has so held, because such has been considered to be the rule adopted by the letter and spirit of the statute, by which proceedings in criminal cases are regulated. Section two hundred and thirty-five of that statute expressly provides that " All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is determined, shall be those prescribed by this Act." If it is possible for the law-making department of the Government, in the face of the conservatism of the legal profession, which is too often blind, we fear, to abolish old forms and rules and establish new, it would seem to have been done by the Legislature of this State. To this conclusion the profession must come, and it must search in the provisions of the statute for the form of an indictment and for the rules by which its sufficiency is to be determined rather than in the common law, for such is the will of the Legislature. The legislation of this State is undoubtedly an innovation upon the common law, but it is not for that reason to be condemned without a trial. An obstinate adherence to custom is more pernicious than cautious experiment. But if this change be unwise in the estimation of counsel, it must nevertheless be enforced by the Courts. In our estimation it introduced a salutary and much needed reform. The idea that the forms and rules of a hundred years ago cannot be improved, which seems to be entertained by some, must be addressed, if at all, to the Legislature. That body has the power to restore the forms and rules of two centuries ago; this Court neither has the power nor the desire. In the administration of justice, as in all else, a wise progress is better than blind conservatism. Not yet has it attained its highest perfection, it is to be hoped, much less had it done so a hundred years ago. If it had, then are those who go before wiser than those who come after, the human understanding is not progressive, and mankind learn nothing from the teachings of experience--the mother of all wisdom.
Section two hundred and thirty-nine provides that the indictment shall be direct and certain as to the party charged and as to the offense charged; but that the particular circumstances need not be stated unless they are necessary to constitute a complete offense. " Murder is the unlawful killing of a human being, with malice aforethought, either express or implied." The unlawful killing may be effected by any of the various means by which death may be occasioned. (Act concerning crimes and punishments, Sec. 19.) Killing a human being unlawfully, with malice aforethought, is the offense, and must be stated. How and by what means it was done are the particular circumstances, and need not be stated, for no particular mode or means are necessary to constitute the offense. That the statute dispenses with a statement of the mode and means by which death was occasioned, in view of these provisions, would seem to be too clear for controversy.
Counsel have characterized the doctrine announced in King's Case as novel, and dangerous to human life and liberty. Were this true it would not be the fault of this Court, as we have seen. But it is neither novel nor dangerous. A reform made necessary in the judgment of the legislators and Judges of England, after centuries of experience, need not inspire counsel with apprehensions of danger to life and liberty, nor need they be startled by the novelty of a doctrine which was announced more than seventeen years ago by one of the most eminent of American jurists, not under the influence of popular excitement, as suggested by counsel, but, as we believe, under the guidance of that nice discrimination for which he was remarkable and by the aid of which he rarely failed, if ever, to distinguish between chaff and wheat--sophistry and logic. (Webster's Case, 5 Cush. 295.)
The following form is now used in England, and is there regarded as being all that is requisite, in trials for murder, to secure a just and impartial administration of the law:
" Gloustershire, to wit: The jurors of our Lady the Queen, upon their oath, present that A. B., on the 10th day of July, 1866, feloniously, willfully, and of his malice aforethought, did kill and murder C.D." (American Law Review for October, 1867, p. 192.)
With the formal commencement prescribed by our statute, and the venue added, this form, in our judgment, contains all that need be stated in an indictment for murder under our system, and all that should be required under any system. It contains all the ultimate or issuable facts. All other facts are merely probative, and should no more be stated in an indictment than in a complaint in a civil action.
Upon the other points discussed in the petition we find no occasion to add anything to what we have said in our former opinion.