I dissent.
One of the prosecution witnesses testified on direct examination that on the morning of the homicide he had made a search of defendant’s person and found nine cents in his pockets which the defendant said “was all he had”. During the cross-examination of defendant, who had taken the stand in his own behalf, the prosecution established that defendant had not worked for a week prior to the homicide and had borrowed money from the deceased and that at the time defendant had only nine cents. In his argument to the jury, the district attorney emphasized the fact that defendant at the time of the homicide had but nine cents in his pocket. He then argued, in part, that defendant “had no .employment, no contact, nothing except living there. There was a game there the night before, and it is uncontroverted—there is no dispute about it—that the defendant had no money of his own ... he was, as we say, impecunious—busted flat; on the other hand, he admits seeing the deceased having money. . . . Now, let us presume . . . that this defendant actually conceived the idea in his strained financial condition, and it appeared there that he would get a little easy money. . .'. Let us conceive that the defendant being hard up, and needing some money, and knowing that the old man had some money, that he would conceive the idea of getting it. ’ ’
While a showing of motive is not indispensable to the establishment of an offense (People v. Kelley, 208 Cal. 387, 390, 391 [281 Pac. 609]), it definitely appears from the record herein, and particularly from the foregoing, that the prosecution in its attempt to connect defendant with the homicide relied strongly on defendant’s lack of employment and his apparent need of money. In view of the emphasis placed by the People on these features and in the circumstantial state of the *521evidence generally, I am of the opinion that the trial court grievously erred to the prejudice of the defendant when it sustained objections to questions intended to elicit that on the day preceding the homicide the defendant had a promise of employment. Such evidence was admissible as tending to overcome or minimize the motive or reasons advanced by the prosecution for defendant’s asserted commission of the offense.
I am also of the view that the trial court erred in precluding the defendant from offering evidence, through a disinterested witness, to the effect that the deceased had been in the habit of depositing or “banking” money with the witness, a restaurant owner. This offer of evidence was explained by the defense as intended to show that deceased never retained or kept large sums of money with him, of which fact defendant was aware. Such evidence, if admitted, would have tended to overcome the likelihood of defendant perpetrating the heinous offense charged against him. In the face of such evidence it would not be unreasonable for the jury to assume that a person as financially distressed and as sorely in need of money as the prosecution had portrayed the defendant, would not have murdered and robbed one with such a limited amount of money available. The evidence should have gone to the jury for whatever weight it desired to attach thereto.
Then again, I am of the opinion that it was error to sustain objections to questions put to three defense witnesses, including the defendant, intended to disclose that the deceased on several occasions had referred to the defendant as “his boy”. Evidence of this character would have a tendency to establish the amicable relations between deceased and defendant and tend to render improbable the latter’s participation in his benefactor’s untimely and violent death.
In view of the fact that all of the evidence tending to connect the defendant with the homicide and the robbery was meager and was circumstantial in character, any material evidence tending to prove lack of motive on the part of the defendant should have been admitted. In my opinion, the proffered evidence above discussed was material to this purpose, and the error involved in its rejection is accentuated by the circumstantial character of the prosecution’s evidence tending to connect defendant with the homicide. The weight *522of credibility to be attached to such evidence, of course, would be for the determination of the jury.
Langdon, J., concurred.
Rehearing denied. Thompson, J., voted for a rehearing.