MR. JUSTICE PIGOTT
delivered the opinion of the Court.
James Eli Fisher, accused of the murder of one John Allen, and convicted of murder of the first degree, has appealed from the judgment imposing death and from the order denying his motion for a new trial.
1. That the evidence is not sufficient to sustain the verdict is one of the assignments upon which the defendant asks for a reversal. It is argued that the corroboration of the alleged accomplice, James Calder, was not such as the law requires. Upon this point it is enough to say that there are many items of evidence which in themselves, and without the aid of the testimony of James Calder, tended to connect the defendant with the commission of the crime, — indeed, parts of his own testimony have such tendency; and, secondly, the jury might have found from the evidence that James Calder was not an accomplice in the murder of Allen, in which event a conviction could rightly be had upon the uncorroborated testimony of this witness, who deposed to facts from which the jury might have reasonably deduced every inference necessary to establish the guilt of the defendant.
2. The court instructed the jury that the defendant “is either guilty of murder in the first degree or is not guilty at all,” and withheld from their consideration murder of the second degree and manslaughter. The evidence tending, to prove that the defendant, with his own hands, killed Allen, is wholly circumstantial or indirect, as defined by, section 3109 of the Code of Civil Procedure: “Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an [545]*545admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred.” No witness testified that he saw the decedent slain. In this respect the evidence is wholly indirect. James Calder swore that one William Wallace Calder commanded the defendant to go and kill Allen, who was about a mile away from the place where the command was given; that the defendant, carrying a rifle, went in the direction of Allen; that in a few minutes the report of the discharge of a gun was heard; and that when the defendant returned he informed the witness that he had killed Allen, whose dead body was found immediately thereafter, lying in his own blood, with a bullet hole through the skull. The defendant testified that William Wallace Calder said he (William) was going to kilL Allen, that defendant and James Calder a short time afterwards heard the report of a gun, and when William returned he said he had shot and killed Allen. The jury were not bound to believe James Calder. They were at liberty to believe all, a part, or none of his testimony connecting the defendant with the perpetration of the crime. If they did not believe any of it, there was, nevertheless, as the record shows, sufficient evidence remaining to warrant the jury in finding the defendant guilty of murder in either degree. Even if all the testimony of James Calder were accepted as true, still the inference to be drawn therefrom is not necessarily that the murder was deliberate; in other words, the testimony of James Calder, if true, does not require the inference that the murder was deliberate, nor does the law deduce such presumption. What occurred at the time Allen was killed, and the state of the defendant’s mind, were to be found by the jury from the evidence. If all the testimony of James Calder be disregarded, there would be sufficient evidence remaining to warrant a verdict of guilty of murder with or without the element of deliberation. As was said in State v. Calder, ante p. 504, 59 Pac., 904: “Where the proof of guilt on a trial for deliberate murder is to be deduced from circumstantial evidence alone, the court should ordinarily, and perhaps always, charge the jury as to murder [546]*546of the first and second degrees, and should also charge as to manslaughter whenever there is any evidence tending to negative the presence of malice; for in such cases the circumstances may permit of inferences tending to show the commission of different grades of felonious homicide. If the killing was unlawful only, manslaughter is the crime; add to the element of unlawfulness malice aforethought only, and murder of the second degree is the crime; and, lastly, add deliberation to unlawfulness and malice aforethought, and murder of the first degree is the crime. Even in cases depending for proof of guilt largely or chiefly upon direct evidence, the omission to instruct with respect to murder of the second degree is a dangerous practice, and would in most cases constitute error sufficient to reverse a judgment convicting the defendant of the higher crime; the reason being that the question of fact of whether or not the element of deliberation was present is, save in very exceptional cases, to be determined not by the court, but by the jury.”
Section 2081 of the Penal Code provides: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” In such cases the presumptions to be deduced and the inferences to be drawn depend upon the application of recognized principles of law to the evidence. The state having proved the killing by the defendant without evidence tending to show that the act amounts to manslaughter, or that the defendant is justifiable or excusable, the crime is presumed to be murder of the second degree. If the state would raise the crime to murder of the first degree, the burden is upon it to prove deliberation; on the other hand, if the defendant would reduce the crime to manslaughter, there must be produced evidence sufficient to create a reasonable doubt of the existence of malice. If, from the evidence, the jury believe the [547]*547killing was unlawful, and with malice aforethought, the deduction is murder of the second degree; if the murder was deliberate, the deduction is of the first degree of that crime; and if they believe that the killing was unlawful, but without malice, the deduction is manslaughter. Where the evidence shows conclusively that the defendant either committed murder or did not do the killing, then the jury ought to find the defendant guilty of murder or acquit him altogether; and the court does not err in so charging. In the case at bar the court should have instructed the jury upon both degrees of murder. There was, however, no evidence, direct or indirect, tending to reduce the felonious homicide to manslaughter; hence an instruction upon that crime was unnecessary.
The present differs from the Colder case in many respects. For example, there was not sufficient evidence, aside from the testimony of the accomplice, who. was an eyewitness of the murder, to sustain a conviction of any grade of homicide; if his testimony was true, the defendant was guilty of deliberate murder, and, upon being sufficiently corroborated, the jury should have so found; if false, he should have been acquitted of any grade of homicide.
3. The court charged the jury in writing, and they retired to consider of their verdict. On the evening of the same day —March 29, 1899 — the jury returned into court, and the following oral remarks were made by the judge (addressing counsel for the defendant): “Mr. Blackford, if you desire what I say to the jury shall be transcribed by the stenographer afterwards, and taken to them as an instruction, I am perfectly filling to have it done; if you demand it, it will be transcribed;” to which no response was made. Judge (addressing jury): “You can speak through your foreman, gentlemen. The sheriff telephoned me that you desired to see the •oath that you took. What is the object of that, to begin with?” Foreman: “There seems to be some — I won’t say misunderstanding — but there seems to be a doubt in some of their minds whether we have a right to go outside of the evidence in drawing conclusions in this case, — whether we have [548]*548a right— I hardly know how to express myself.” Judge: “Whether you can consider circumstances not proven in this evidence?” Foreman: “Yes, sir.” Judge: “No. Your oath is, as soon as the jury is completed, and so forth, the following: ‘That they and each of them will well and truly try the matter in issue between the plaintiff and defendant, and a true verdict render according to the evidence. ’ It is your duty, gentlemen, to take the evidence, and view it in the light of the instructions given you by the court; but, if any member of your jury knows anything outside of what has been testified here, he has no right to use that in arriving at his verdict. Is that what you mean, — some ulterior fact ? or do you mean to apply common knowledge to the facts already proven by the testimony ? Of course, in judging the testimony, you must use your common sense, but, for instance, suppose that one of the jurymen knew something which had not been proven against his man (not that I know that there is anything against him; this is only an illustration, gentlemen), and he would use that in saying that he ought to be convicted, or knew something good in favor of him, and therefore said that he ought to be acquitted, that would be going outside of the testimony in arriving at a verdict.” Foreman: “We have no right to consider this man Fisher’s past life? We know nothing of it, and we have no right to draw any conclusions ?” Judge: “No more than as derived from the testimony as the court has given you the charge with regard to the testimony. What weight you shall give that is á question for you gentlemen to decide. In other words, you have no right to consider his past life in considering his testimony, any more than is developed by the testimony at this trial. ” Foreman: “We are to take the evidence as we hear it on the stand? We have no right to consider anything else?” Judge: “No; if you believe that testimony, you have no right to take anything else. You can disregard that testimony, or believe it, as you see fit; it is a question with you. You may disbelieve any witness, but, as the court has instructed you before, the presumption is that the witness is telling the truth always. But [549]*549you can’t take anything outside of the testimony given before you upon the witness stand. You can believe any part of that testimony, or disbelieve any part of it, with the presumption as the court has instructed you in the former instruction. Now, do you understand, gentlemen, that you are the sole judges of anybody’s testimony that is given upon the stand? and whether you shall believe them or disbelieve them is a question which the court has nothing in the world to do with, and it is left for you twelve gentlemen to decide; and what weight, in that connection with the question that the foreman asked me, that you shall give the affidavit of the defendant as to what certain witnesses will swear to, as the court has instructed you before, is a question for you to decide. You may give it great weight, or give it no weight. The court has nothing to do with it. ’ ’ Foreman: But the fact that the defendant hasn’t these depositions that he speaks of should not prejudice us against him at all ?” Judge: “No.” Foreman: “I think that is all.” Judge: “Well, gentlemen, you can retire. It is a question of the testimony here in the whole case. You should consider the circumstances surrounding everything in this matter, and decide it. The court cannot decide any question of fact, — tell you who you ought to believe, and who you ought not to believe, — because that is strictly your province, and the law says that you must decide it, and not the court. You can retire. ” On the afternoon of the next day the jury again appeared, and the following colloquy occurred: Judge: ‘Gentlemen of the jury, have you agreed upon a verdict?” Foreman: “We have not.” Judge: “Did you desire to see the court, Mr. Foreman?” Foreman: “We wished to make a statement that it is— There is no prospect that we can agree.” Judge: “This is a case, gentlemen, that is an expensive case for the county to try, and it is not a case where I think a jury ought to disagree in. They either ought to find this man guilty of murder in the first degree, or they ought to find him not guilty. Feeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, and put the county to a large [550]*550expense, although 1 don’t care to force any man against *his conscience to agree to a verdict which he does not believe in. Nevertheless,' if he can be persuaded by talking with his fellow jurors as to the guilt or innocence of this defendant, so that they all may agree, I should much prefer it. Of course, it is no pleasure for me to keep the jury together, nor have I any desire to inflict punishment upon men who are simply doing their duty as citizens of the county; but at the same time it is as much my duty to see that there is a verdict, if possible, in this case,, as it is your duty to conscientiously consider the matter before you. Feeling as I do about the case, as I have stated, I do not feel that I should discharge you. So you can retire, gentlemen, and I will be here at any time if you desire further instructions upon the matter, or you arrive at a verdict. Before you gentlemen retire, is there any question that seems to be bothering you that you desire any further instructions upon as to the law than the court gave you yesterday?” Foreman: “Not that I know of.” Judge: “You can retire, gentlemen.” On March 31st the jury again appeared in court, this time at the request of the judge, who told them that the case was so important that he did not feel justified in discharging them at that time, saying, also, that he desired no juror to be forced to a conclusion except by legitimate argument and discussion. On the same day the jury found the defendant guilty.
None of the remarks made on any of the three occasions were reduced to writing. All were taken in shorthand by the stenographer, but were not extended until after the verdict was returned. The defendant excepted to the action of the court, and assigns error thereon. Subdivision 5 of section 2070 of the Penal Code prescribes that the court must charge the jury as provided in subdivisions 7, 8, and 9 of section 1080 of the Code of Civil Procedure, which declares that the court shall charge the jury in writing. Subdivision 6 of -section 2070, supra, also prescribes that the court must not “in any case make any oral comments to the jury on the instructions, unless by agreement of both parties. All instruc[551]*551tions given and refused must be filed among the papers of the case.” Section 1085 of the Code of Civil Procedure, which is applicable to civil cases only, provides that if, after the jury have retired to deliberate, there be a disagreement among them asfto the testimony, or they desire to be informed of any point of law, the information must be given in writing or taken down by the stenographer; whereas section 2123 of the Penal Code provides that such information, when required in a criminal action, must be given in the presence of the county attorney and the defendant and his counsel, omitting the provision contained in section 1085, supra, that the information must be given in writing or taken down by the stenographer, and leaving that matter to be regulated by subdivisions 5 and 6 of section 2070, supra, of the Penal Code. The attorney general contends that the silence of counsel for the defendant when the judge offered to have what he was about to say transcribed thereafter and taken to the jury as an instruction was an agreement or assent to the offer made on March 29th. Not so. From silence assent to a proposed course may often be inferred in fact or presumed in law; but it never should be so inferred or presumed unless the person or party remains silent when he ought to speak. Were it provided that the instructions and the comments thereon may be oral unless the defendant asks that they be reduced to writing, then, manifestly, oral instructions and comments would be proper, if not objected to'because unwritten, and a failure to make seasonable objection would constitute assent, or, rather, would be a waiver of the right to complain thereafter. But by section 2070, supra, the court is commanded to charge the jury in writing, and is forbidden to make oral comments upon the instructions, unless by agreement of both the state and the defendant. This provision requires expression to be given to the assent of the defendant, and his mere silence, or that of his counsel, may not be taken as evidence of the consent. Duty did not demand objection; no legal obligation rested upon the defendant to speak; on the contrary, the court, if it would orally instruct the jury or [552]*552make oral comment upon the charge already given, was under obligation to secure the consent or agreement of the defendant thereto. The j udge may not create or impose such a duty by saying (in effect) to counsel for the defendant: “L purpose giving oral instructions and making oral comments upon the charge already given. If you desire my remarks to be transcribed hereafter by the stenograper, and taken to the jury, I am perfectly willing to have it done. The statute- forbids oral instructions and prohibits my making any oral comments on the written charge, unless by your consent. Now, if you do not express objection, I shall consider your silence as consent. ’ ’ Consent to an oral charge, or to any modification of or comment thereon, may not be inferred from the silence of the defendant or his counsel. ‘ That such is the rule seems clear; it is supported by many cases, a few of which we cite: People v. Chares, 26 Cal., 78; People v. Kearney, 43 Cal., 384; People v. Prospero, 44 Cal., 186; People v. Hersey, 53 Cal., 574; People v. Bonds, 1 Nev., 33.
Subdivisions 5 and 6 of section 2070, supra, requiring the charge of the court in a criminal action to be in writing, and prohibiting oral comments on instructions unless by agreement of the parties, are mandatory, and a violation of them constitutes error. Did the court either give the jury oral instructions or make oral comments upon the charge, the statements having been taken down in shorthand by the stenographic reporter ? The attorney general insists that when section 371 of the Code of Civil Procedure, which provides that the official stenographer shall take full notes of all the proceedings at the trial, is considered as supplementing sections 2070 and 2123, supra, the statutes of Montana are, in substance, the same as those of California relating to oral instructions, and should be interpreted as are the latter. We do not agree with him, nor with the holding of the supreme court of Idaho upon this question in State v. Preston, 38 Pac., 694. In subdivision 6 of section 1093 of the present Penal Code of California is the following provision: “If the charge be not given in writing, it must be taken down by the [553]*553phonographic reporter,” which recognizes a distinction between a written charge and one merely taken in shorthand by the stenographer. The charge is oral if not in writing, even though it be taken down by the stenographer. Such oral charge, when so taken down, is permitted by the statute of ■California, but there is no similar statute of Montana. The assertion that a charge not in writing becomes written when phonographically reported as the words fall from the lips of the judge, carries its own refutation. The plain intent of subdivisions 5 and 6 of section 2070, supra, is to require that the charge must be in writing at the time of its delivery, and must be read to the jury as written, thus insuring its preservation as given to the jury; and so, for like reason, with the information mentioned in section 2123. The fallibility of stenographic reporters is probably another reason why the legislative assembly of this state has not as yet provided that the notes of the stenographer may take the place of a written charge. The statute was probably intended also as a means conducive to great care and caution in framing the instructions, — elements not always attending the giving of those which are unwritten.
In the oral instructions and comments by the judge, the court committed error prejudicial to the defendant: Before the trial the defendant had applied for a continuance in order to obtain depositions, setting forth in his'affidavit that certain witnesses, if present, would testify that his general reputation and character for morality was good in the community of his residence, and the state admitted at the trial that the witnesses, if present, would so testify. In the written charge in respect to this matter the law was correctly declared, except in the following clause: “The fact that a man, prior to the alleged commission of a crime, has had a good character, if you believe that he has proven by competent evidence that he has had a good character in the neighborhood in which he lives, always goes to his credit. ’ ’ The court is the j udge of the competency of the evidence, the jury of its weight.. This error may have tended to raise in the minds of the jurors the [554]*554question of whether the evidence which the state admitted would have been given if the witnesses were present and testifying was competent to prove character. This appears from the question asked by the foreman, the jury desiring to know whether they had the right to consider the defendant’s previous life: “We have no right to consider this man Fisher’s past life? We know nothing of it, and we have no right to draw any conclusions?” “We are to take the evidence as we hear it on the stand? We have no right to consider anything else?” In answering, the judge said: “No. . * * * But you can’t take anything outside of the testimony given before you upon the witness stand. * * * Now, do you understand, gentlemen, that you are the sole judges of anybody’s testimony that is given upon the stand? * * * and what weight, in that connection with the question that the foreman asked me, that you shall give the affidavit of the defendant as to what certain witnesses will swear to, as the court has instructed you before, is a question for you to decide. You may give it great weight, or give it no weight. The court has nothing to do with it.” Foreman: “But the fact that the defendant hasn’t these depositions that he speaks of should not prejudice us against him at all ?” The judge answered, “No.” By these remarks the jury were misdirected. They were bound to accept the affidavit of the defendant as true, it was not to be weighéd by the jury; the affidavit stated that certain witnesses, if present, would testify to good character, and the state admitted such to be the fact. In considering the question of the defendant’s guilt, and as bearing upon it, the weight to be given (not to the affidavit of the defendant, but) to the evidence of good character, was for the jury. When the judge told the jury that they must consider nothing outside of the testimony given before them upon the witness stand, and that the defendant’s failure to produce the depositions of the character witnesses should not prejudice the jury against him, the error was emphasized. True, the written charge, with the exception already pointed out, contained a correct and sufficiently full statement of the law upon the sub[555]*555ject, but the oral instructions and comments were repugnant to the charge.
The oral statements of the judge made to the jury on the second day after their retirement contained the following, in answer to the remark of the foreman that there was no prospect of an agreement: £,This is a case, gentlemen, that is an expensive case for the county to try, and it is not a case where the jury ought to disagree in. They either ought to find this man guilty of murder in the first degree, or they ought to find him not guilty. Feeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, and put the county to a large expense, although I don’t care to force any man against his conscience to agree to a verdict which he does not believe in. * * * Feeling as I do about the case, as I have stated, I do not feel that I should discharge you. ” The judge should not have addressed the jury as he did. It was improper for him to direct the attention of the jury to the expense incident to a new trial as a reason why they should reach a verdict. Whether this, of itself, requires a reversal, we do not decide. The more serious error lies in the intimation that the judge believed the defendant guilty. If he believed that the evidence was not of sufficient weight to sustain a verdict, the manifest duty of the court was to advise an acquittal, — in other words, if the judge was of the opinion that the defendant, if convicted, should be granted a new trial because of the insufficiency of the evidence, the jury should have been advised to return a verdict of not guilty. (Section 2096, Penal Code; State v. Welch, 22 Mont., 99, 55 Pac. 927.) If, in the opinion of the judge, the evidence was sufficient to warrant the submission of the case to the jury, the weight of the evidence was not for him to determine. It seems clear, also, that by the impromptu oral charge and comments the jury were given to understand that the judge entertained no doubt of the verdict which ought to be rendered, and the trend of his remarks was certainly calculated to impress the jury that, in his opinion, the verdict should be one of guilty. His opinion upon [556]*556the weight of the evidence and the guilt of the defendant was not expressed in direct language, but it was implied. We think the correct rule is announced in People v. Kindleberger, 100 Cal., 368, 34 Pac., 853: “When, upon the trial of a defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of the judge to so inform the jury, and to advise a verdict of acquittal. This power is sometimes exercised by courts, and is one so frequently invoked in the trial of criminal cases that its existence may be regarded as a matter of common knowledge upon the part of jurors of ordinary intelligence and experience; and this fact is not to be lost sight of in considering the impression likely to have been made upon the jury by the charge of the judge in this case. To any one knowing that it is the duty of the court to advise an acquittal if the evidence is such that, in the opinion of the judge, twelve honest men would have no right to convict him, the remarks of the judge in this case could not fail to create the impression that he thought the jury ought to convict upon the evidence before them. But it is not necessary that we should be able to say that the jury must have so understood the charge. Unless it appears that it could not have been so understood, we cannot say that the charge was without prejudice to the defendant. The court has no right, except when advising an acquittal, to gire any expression of its opinion as to the weight of evidence, or to tell the jury that the evidence is so clear that they, as honest men, ought not to disagree, which is, in effect, the same as telling them that there is no conflict in the evidence, and that, as honest men, they can render but one verdict. ’ ’
4. As the cause must be remanded for a new trial, we notice the only other question which is of importance. It is earnestly insisted that there was evidence tending to prove that the defendant was commanded to kill Allen by William Wallace Calder, who threatened to take the life of the defendant if he refused; and that the defendant, believing that Calder would execute his threat, to save his own life killed Allen, who was, when slain, a mile distant from Calder and from the [557]*557place where the threat was last made. If the evidence disclosed that the defendant killed Allen under these circumstances, then, at the common law, he would have been, and by the statutes of this state he is, guilty of a deliberate murder. (Arp v. State, 97 Ala., 5, 38 Am. St. Rep., 137, 12 South., 301, 19 L. R. A., 357; People v. Repke, 103 Mich., 459, 61 N. W., 861; Regina v. Tyler, 8 Car. & P., 616; section 30, subdivision 8 of the Penal Code.) The instructions touching this phase of the case and kindred matters were, to say the least, as liberal toward the defendant as any that could be given without misdirection in his favor.
The judgment and the order denying the motion for a new trial are reversed, and the cause is remanded.
Reversed and! remanded.