The defendant was indicted, tried, and convicted of murder. By the bill of exceptions, it appears *185that on the day the defendant .was called upon, and did plead not guilty to the indictment, he filed an affidavit and motion for the postponement of the trial, which the court refused to grant, and this is assigned as error. It is admitted that the granting or refusing of a continuance rests in the sound discretion of the court below, and that its determination ought not to be disturbed except for the best reasons. From the nature of things, the court below is placed in a much more favorable position to see the case in all its connections, and is therefore better fitted to decide the propriety of the application, than the appellate court; and unless the decision is manifestly wrong and arbitrary, involving an abuse of sound discretion, this court will refuse to reverse it. (People v. Gaunt, 23 Cal. 157; People v. Williams, 24 Id. 31; People v. Dodge, 28 Id. 448; People v. Brown, 46 Id. 103.)
The affidavit states “that C. M. Miller is a material witness-; that he is now in Kansas City, state of Kansas; that his attendance cannot be procured at this term of court, but I am confident I can procure his attendance at the next term of the court.” In this statement there are no facts set out from which the court can judge-whether there is reasonable ground to believe that the attendance of the absent witness can be procured at a future day. It is not enough to say, “I am confident I can procure his attendance at the next term of the court;”' but the facts or circumstances upon which such confidence or belief is founded must be set out, so that the-court may look into and determine from them whether there is reasonable ground to believe that the attendance of the witness can be procured. , “But if the affidavit,” said Crockett, J., “had stated explicitly his belief that he-could procure their personal attendance at the next term,, it would still have been insufficient, unless the reasons for his belief had been set forth, to enable the court to *186■decide whether his belief was well founded; or, if he acted on the information of others, he should have stated •.the nature and particulars of the information. For the .same reason, if a party states, on information and belief, that he can procure the personal attendance of a witness from a distant and foreign country, he should set forth the reasons for his belief and the nature of his information, that the court may decide whether or not there is reasonable ground to believe that the witness will attend. If continuances could be procured on such affidavits as this, the delays in the administration of justice would ■soon become intolerable. While great liberality should he extended toward persons charged with crime, in preparing the defense, and particularly in procuring the .attendance of witnesses, the rule must not be so relaxed .as to defeat the ends of justice.” (People v. Francis, 38 Cal. 187; People v. Ah Fat, 48 Id. 63.) Where the absent witness resides in another state, remote from the place •of trial, and in no wise amenable to the process of the court, the affidavit ought to set out the facts fully and •explicitly, so as to satisfy the court, in furtherance of right and justice, that the delay ought to be granted.
It is next objected that the court erred in sustaining the objection made by the state, and excluding the answer of the witness John Frazer to this question: “ State whether or not you saw the defendant leaving Medford for Ashland, on his way from' visiting his brother, at Jump-off-Jo, about the first of October, 1884; if so, state whether he had in his possession a double-barreled shotgun, or not.” It appeared that two days after the murder .■a double-barreled gun was found in a lot near the place where the murder was perpetrated, which, in some respects at least, answered to the description of a double-barreled gun which the defendant, a short time before, had procured from his brother at a place called Jump-off-*187Jo, several miles distant from Ashland. The prosecution had established the fact of his procuring such a gun at his brother’s, and of its being seen in his possession at different points on his return from his brother’s, coming towards Ashland. The state showed that when the defendant passed Rock Point, Gold Hill station, and Blackwell, he was carrying such a gun, and, as it would seem, then making no effort to conceal it. The object of the question asked was to show that when the defendant was leaving Medford, which was subsequent in point of time, and nearer, and in the line of his route to Ashland, he had not in his possession a double-barreled shot-gun, and thus to some extent break the continuity, and repel the inference, of the facts sought to be established by the prosecution. This is the claim of the counsel for the defendant, and the inquiry is, whether the question is relevant, or not. ■
“ Relevancy is that which conduces to the proof of a pertinent hypothesis. Hence it is relevant to put in evidence any circumstances which tend to make the proposition at issue more or less probable.” (Whart. Ev., secs. 20, 21; Whart. Crim. Ev., secs. 23, 24.) In Trull v. True, 33 Me. 367, it was held that “ testimony cannot be excluded as irrelevant which would have a tendency, however remote, to establish the probability or improbability of the fact in issue.” It is a fundamental rule of evidence, applicable to all trials, that the evidence must he confined to the point in issue. Its sole object is to establish or disprove the disputed facts in issue between the parties; and any evidence not adapted to that end ought not to be received, “ Had the case before us,” said Cowen, J., “ been one of improperly admitting evidence which bore in the least on the general question of guilt or innocence, no doubt a new trial should be granted.” (People v. Wiley, 3 Hill, 194.) In all such *188cases, “the.single question presented to the court is one of relevancy or pertinency, and not one of force or value as testimony. No matter how slight the inference may be that can be drawn from a particular fact, it is competent to be considered as an element of the entire concrete of facts from which the deduction is to be made.” (Scott v. State, 56 Miss. 287.
If, therefore, the court, in refusing to allow the question asked to be answered, committed such error as affected the rights .of the accused, however slight it may have been, the conviction must be set aside and a new trial granted. The controlling and important inquiry, then, is, Was the question excluded relevant? For the better understanding of this inquiry, some preliminary statement is necessary. It appears from the record that there was evidence tending to prove that, previous to the murder, the defendant had maintained improper relations or intimacy with the wife of the deceased, and had made threats against his life; that after the murder a gun was found in a lot near the place where the murder was committed; that the person who had committed the deed had fled by an unfrequented way, leaving the imprint of his boots in the soft earth, which, by trial, were found to fit the boots worn by the defendant. Upon this state of facts, it became important for the state to trace the gun into the hands or possession of the defendant. For this purpose the state proved that a month or more before the murder was committed, the defendant had visited his brother at a place called Jump-off-Jo, some fifty miles distant from Ashland, and while there procured from him a double-barreled shot-gun, which corresponded or answered to the description of the gun-found near the place of the murder; and, to further corroborate and fix that procurement and possession of the gun by the defendant, the testimony, as to the interme*189cliate points on his return, was introduced and admitted. The state had thus established the fact of the possession of the instrument. It had traced the gun into the hands of the defendant, with the power to control it, and it became necessary for the defendant to get rid of that possession, unless he could contradict the fact of procurement, or show the gun procured was another or different gun. As nothing of this sort was attempted, it only remained to introduce evidence tending to show that subsequently the defendant had parted with the possession o'f the gun, and thereby lost control over it, thus rendering improbable the inference sought to be established by the prosecution; and this is precisely, in effect, the contention of counsel for the defendant. In the written brief it is said that, to rebut the evidence offered, the object of the evidence rejected was to show that the defendant “was not in possession of the gun — had parted with it.” It is not pretended that the evidence sought to be elicited by the question would have tended to contradict the fact of his procurement and possession of the gun as proved by the state, but it is insisted that it tends to prove that, at a time subsequently and nearer the place where the murder was committed, the “ defendant was not in possession of the gun — had parted with it”— and in this way would have tended to rebut the inference of the facts as proved by the state. If this is the effect .of the proposed evidence, or the proper inference to be drawn from it, then it was relevant, and its rejection was error, which affected the rights of the accused, and the conviction ought to be set aside. But in my judgment, this is not the effect of the evidence proposed to be elicited by the excluded question. It simply proposed to show that, at the time when the witness saw the defendant leaving Medford,-he did not have in his possession a .double-barreled gun; but this by no means implies or *190justifies the inference that he had disposed of the gun, or parted with its possession, so as to lose control over it, or that he was not in fact in the virtual possession of it — only that he was not in the visible possession of the gun at the particular time the witness saw him. From the nature of the case, it is not to be supposed that the defendant was, at all times after he had procured the gun, in the open, visible- possession of it. There would necessarily be many times when this would not nor could be the case; and if he had the murderous design in his heart which it is claimed the facts indicate, the gun and all traces of it would be purposely out of his immediate or visible possession, but subject to his control, as he neared Ashland, where the deed was to be perpetrated. As the facts stood, to rebut or render less probable the inference arising from the facts as proved by the prosecution, the evidence, proposed, to be relevant, should have tended in some degree to show that the defendant had parted with or in some way disposed of the possession of tlie gun, or tendered some circumstance, however originating, of similar import or effect, which involved the inference of a loss of control or dominion over it. As a circumstance for the purpose offered, the evidence proposed by the question fell short of the disputed issue, and needed the aid of some additional fact, either to have been previously proved, or to have been followed by an offer of subsequent proof, to render it relevant and material. For instance, if there had been evidence already submitted by the defense tending to show that the defendant, before reaching Medford, or while there, had sold the gun, or in some manner parted with the possession, whereby it passed into other hands, or, by reason of the absence of witnesses or other cause, offered to follow up the question asked by some such equivalent proof before the evidence closed, then the evi*191dence proposed by the question would have been relevant,, not only as corroborative of the fact that the possession had passed into other hands, but as strengthening its-rebutting effect.
It is a mistake to suppose, as suggested by counsel,, that evidence of the disposal of the gun to another, and the evidence proposed by the question, only differs in degree; the latter fails to raise the material inference implied in the former. It seems to belong to that class of evidence, often proposed, which approaches, but does not exactly reach, the boundary line dividing the relevant and irrelevant, but which, particularly in cases of' this sort, it is freely admitted it is better and safer to receive than to reject. It is always best, in cases of' a criminal character, particularly where life is involved, that the court should adopt a liberal rather than a rigorous or technical rule in the receipt of evidence for the defense. “Whenever there is any doubt of the question,” said Baldwin, J., “ or rather, whenever the evidence proposed by the defense is not plainly admissible,, it is better to let it go in, since, in nine cases out of ten,. a single equivocal fact, of doubtful bearing on the case,. would have no effect upon the judgment of the jurors,. who are usually disposed to pass, and do pass, upon the ■ general merits.” (People v. Williams, 18 Cal. 194.) And. this seems to be the uniform language of the authorities.
In Mack v. State, 48 Wis. 287, Taylor, J., in delivering ■ the opinion of the court, said:
“ Though it be true that the judge, upon the trial of a, criminal case, should not permit the time of the court to • be wasted in hearing evidence which is entirely disconnected with and immaterial to the real issues, and which may mislead and confuse the jury, yet, on the other hand, for the furtherance of justice, and the protection of the state, a liberal rule should be adopted in the-*192admission of evidence, and no evidence offered by the accused should be rejected when its immateriality is not clearly apparent.”
Again: “ It seems to us that in every aspect of the case it is better for the state, as well as for the accused, that the trial court should adopt a liberal course in the receipt of evidence offered by the defense; and that if the court errs, it should err in liberality, rather than in the application of technical and rigorous rules, excluding all evidence which is not clearly seen to be material.”
The next objection is to the following language of the court, added to an instruction: “ Then you may consider this as a circumstance in determining the guilt or innocence of the defendant.” It is not thought, as argued, that the court meant, or the jury understood, by this language, that innocence was to be established. Nor does the language imply such a construction; but that this was a circumstance for the jury to consider in determining whether the defendant was guilty or not guilty. It is not innocence, but guilt, that is to be proved or established in a criminal proceeding. But whether the defendant is guilty or not guilty, the jury are to determine from the facts and circumstances of the case. Cases may undoubtedly occur where the jury do not believe the defendant innocent, and yet acquit him, because the evidence fails to establish his guilt in their minds beyond a reasonable doubt.
As these are the only matters that we have deemed it necessary to consider, it follows that the judgment must be affirmed.