— I dissent. There is no presumption that necessarily, or even prima facie, an arrest for larceny was founded on a written accusation. On the contrary, in numerous instances, the arrest is lawfully made, without a warrant or written accusation, when the offender is taken in the very act of committing the crime. But if the law expressly required a written accusation as preliminary to the arrest, nevertheless the accused may, in fact, have been arrested on a verbal accusation only; and for all the purposes for which the witness in this case was interrogated on that subject, the fact of the arrest, under such circumstances, would have been as damaging to him as though the forms of law had been strictly complied with in making the arrest. And even though it had been conceded that the accusation was in writing, I am not prepared to say that the court erred in admitting the testimony. In People v. Reinhart, 39 Cal. 449. the attempt was made to prove by parol that the party had been convicted of a felony. We held the proof to be incompetent, on the ground that the record was the best evidence of the conviction. But an arrest is an act in pais, and may be proved by parol; and my impression is that the cause of the arrest, to wit, that the party was suspected of having committed a particular offense, may be shown in the same method, even though there was a written accusation. The sole object of such evidence is to show that the witness had labored under so strong a suspicion of having committed a particular offense as to induce his arrest; and I am inclined to think this fact may be shown by parol, even though the accusation was reduced to writing. It will seriously obstruct the administration of justice in criminal cases if such evidence be inadmissible. When the accused becomes a witness on his own behalf, it may frequently become important to show, as affecting his credibility, that on previous occasions, and perhaps in remote localities, or in other states and possibly in a foreign country, he had been arrested on criminal charges. If the fact cannot be shown by parol, it will be practically impossible to prove it at all in numerous eases. My impression is that such evidence is admissible, even though the accusation be in writing; but it is unnecessary to decide the point in this ease.
*689WALLACE, J.— The latitude which should be allowed on cross-examination (upon which the opinion of the majority of the court proceeds) is a question which I do not understand" to be presented in the record before us. The case is here upon a bill of exceptions — intended, in the language of the statute, “to present the questions of law upon which the exceptions were taken” — and it sets forth that the prisoner had been examined in chief as a witness in his own behalf, and that upon his cross-examination by the district attorney that officer made certain inquiries of him to which his counsel objected because the evidence sought to be elicited thereby was “not the best evidence in degree.” Had it been the intention to question the mere limit to which a cross-examination might be properly carried or to claim that in point of law that limit had been exceeded, the bill of exceptions would doubtless have so stated, and with the requisite precisions. So, had it been the purpose of the prisoner to challenge the right of the district attorney to cross-examine him at all, the bill of exceptions would have so set it forth. But when, as here, we are distinctly informed by the record that the objection upon which the prisoner relies is that the evidence itself is “not the best evidence in degree,” we are pointed to a recognized rule governing the production of evidence in courts of justice and, ordinarily, requiring it to be the best in degree in the power of the party offering it, and our judgment must be confined to a consideration of that rule and its application to the facts appearing.
And I am of opinion that the rule referred to was not infringed in permitting the prisoner to be cross-examined in the manner complained of.
The object of the district attorney was to prove the fact that the prisoner had been arrested upon a charge of larceny— this was a fact, if at all, in pais; it was an act done, if done at all, irrespective of the existence of any record authorizing, or supposed to authorize, it to be done; as a mere fact occurring, it would, therefore, still exist though it had been conceded that no writing had ever existed to which it bore any relation or had any possible reference. The distinction in this respect between the proof of such a fact upon the one hand and the proof of the fact of conviction of an offense *690upon the other hand is most obvious — the latter is necessarily matter of record; the conviction is the record itself, and it cannot be seen or understood except as it is found there. The cases in this court (People v. Reinhart, 39 Cal. 449; People v. McDonald, 39 Cal. 697) relied upon by the prisoner’s counsel themselves illustrate the distinction indicated. I therefore dissent from the prevailing opinion and from the judgment of reversal, and am of opinion that the judgment of the court below should be affirmed.