MR. JUSTICE JOHN C. HARRISON
delivered the Opinion of the Court.
Appellant was charged by information with committing first degree murder and first degree assault.
“COUNT I
“In the District Court of the Thirteenth Judicial District of the State of Montana, in and for the County of Yellowstone, on the 19th day of February A.D. 1962, comes William J. Speare, County Attorney of said county, and here in said District Court, upon his official oath and in the name and by the authority of the State of Montana, informs the Court: That one LLOYD JAMES NOBLE late of the County of Yellowstone, State of Montana, on or about the 16th day of of February, A.D. 1962, at the County of Yellowstone and State of Montana, committed the crime of MURDER, in that the said LLOYD JAMES NOBLE, then and there being, did, then, and there, wilfully, wrongfully, unlawfully, deliberately, feloniously, premeditatedly and with malice aforethought kill and murder one ROSA NOBLE, a human being, then and there being contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana.
“COUNT II
“That the said LLYOD JAMES NOBLE, on or about the 16th day of February, 1962, at the County of Yellowstone and State of Montana, committed the crime of ASSAULT IN THE FIRST DEGREE, in that the said LLOYD JAMES NOBLE, then and there being, then and there did wilfully, wrongfully, unlawfully and feloniously, with the intent to kill a human being, assault a human being, to-wit: SHIRLEY MAICHEL, with a loaded firearm, to-wit: A Model 722 Remington 257 Roberts Rifle; contrary to the form, force and effect of the [287]*287statute in such, case made and provided, and against the peace and dignity of the State of Montana.”
This information arose out of events that occurred on February 16, 1962. On that evening the appellant went to the home of Mr. and Mrs. Elmer Maiehel where his divorced wife lived and worked as a housekeeper for the Maichels and their two children. After being admitted and talking to Mr. Maiehel for a few minutes, during which time no conversation took place with the two women, he started to go outside saying, “I’ll be right back.” The testimony reveals that he only opened the door sufficiently to reach outside to get a rifle that he had placed just outside the door, and when he came back into the room he pointed it at his ex-wife Rosa who was seated on a couch with Mrs. Maiehel in the living room. At this point Mrs. Maichel first saw the gun and shouted “Oh God, he has a gun” or words to that effect. He immediately commenced firing hitting Rosa. Mr. Maiehel, at his wife’s exclamation, had run to a bedroom to get a pistol and when he returned he found the appellant struggling with Mrs. Maiehel. He tried to shoot the appellant but the pistol jammed, and during the time it took to clear the pistol, the appell ant shot Mrs. Maiehel in the arm, hit her in the head with the butt of the rifle, and shot her twice while she lay on the floor. He tried twice after that to shoot Mrs. Maiehel as she lay on the floor, but the gun was empty. Mr. Maiehel had returned and he again tried to shoot the appellant. This time he succeeded in wounding the appellant in the arm before the gun jammed again after which the two men struggled, with Mr. Maiehel finally overcoming the appellant.
There is little dispute on the evidence as to the commission of the two crimes. The police were at the scene within minutes of its occurrence and made a complete investigation of the physical facts. In addition, they took appellant into custody and got both Mrs. Maiehel and the appellant to the hospital for medical aid. "While at the hospital waiting for surgery one of the officers, Lt. Ness, took a statement from the appel[288]*288lant to the admission of which the appellant has taken exception.
The background of the two families are necessary to reveal the events that lead to this tragedy, and to fully understand the defense. The two families had previously lived in Harrison, Montana, in Madison County and had been friends.
The Maichels had married in 1953 and were the parents of two boys. They became acquainted with Rosa Noble in 1957. According to Mrs. Maiehel in the summer of 1959 the appellant tried to get her to go out with him one evening. She refused. Within a few months after this took place rumors were circulated about the small community that there was an “unnatural relationship” existing between the two women, Mrs. Noble and Mrs. Maiehel. These rumors became so bad that the Maiehel marriage nearly broke up. As a result of the rumors and a threat of the appellant, Mrs. Maiehel left the town of Harrison, and within months Mr. Maiehel sold his business and the family rejoined Mm in Billings. There they sought out the counseling of Dr. Theodore Chemodurow, a local psychiatrist, who assisted them in re-establishing their home. As will be noted later this same doctor had treated the appellant and had also tried to counsel the appellant and his wife prior to their divorce.
The appellant was born in 1921. In 1942 he enlisted in the Marine Corps and participated in the battle of Tarawa and the campaigns of Saipan and Okinawa. Shortly after the battle of Tarawa he was hospitalized and his medical records show that he was treated for mental illness, the first diagnosis being “psychosis — manic depressive”, but that after several weeks of treatment this diagnosis was changed to “combat fatigue”. He went back to duty, served in twro more campaigns, and received an honorable discharge. As a result of his service he drew 30 percent disability, psychoneurotic reaction, anxiety and neurasthania, based on Ms mental condition that was determined to be service connected. After leaving the service he returned to Montana, took over the family ranch and appears to have sue[289]*289cessfully run it for a number of years. He married and at the time of the crime had three children, two boys and a girl. In 1951, due to mental stress his brother-in-law took him to Mount Airy Sanitarium in Denver, Colorado, for treatment where his doctor diagnosed him to be suffering from schizophrenia. He was given shock treatments and treated for two weeks and discharged as having apparently recovered, though the clinical report stated “prognosis must be somewhat guarded in view of the short duration of therapy and hospitalization.”
In September 1959 he was treated at the Veteran’s Hospital at Fort Harrison, Montana, by Dr. Crowley, the resident psychiatrist. There his diagnosis ivas: Psychoneurotic reaction, —anxiety and neurasthenia. Competent. He was put on tranquilizers, and referred to Dr. Theodore Chemodurow of Billings for out-patient treatment. Dr. Chemodurow treated him 12 to 14 times and diagnosed him to be a paranoid schizophrenic. These treatments were in the later months of 1959. Dr. Chemodurow also saw Mrs. Noble at one session, but she was an unwilling patient and did not return. The Nobles were divorced in the summer of 1960 and the appellant got custody of the children. He moved over to Stevensville and from the evidence it appears that he had a difficult time caring for his family, eventually having to board his daughter out though he kept the two boys. Mrs. Rosa Noble eventually went to Billings where she hired out to the Maichels to baby sit and take care of their home in Billings. All of these facts seem to confirm, in the mind of the appellant, the fact that there was a relationship between the women, and upon them he focused all of his difficulties. He blamed Mrs. Maichel for breaking up his home. On the day of the shooting the appellant had driven down to the Yellow tail Dam project seeking work, no jobs were available so he returned to Billings. In his statements the appellant said: “I had been thinking all the way from Hardin about all the trouble this deal had caused me and my children and I made up my mind before I arrived in Bil[290]*290lings that I was going to Elmer Maichel’s house and kill his wife, and my ex-wife Rosa. I had my 257 Roberts Rifle with me in my pickup — I usually carry it with me when I travel.” As has been previously stated that is just what he did, though he only wounded Mrs. Maichel instead of killing her.
One week after the shooting, the defendant, with his attorney, appeared in court and entered a plea of not guilty to each of the counts in the information and the case was set for trial on May 7, 1962. At the time set for trial, May 7, 1962, a jury was picked and testimony was taken from Drs. Hughett and Harr as to the defendant’s competency to stand trial, and the jury found “the defendant, Lloyd James Noble, incompetent at this time, and unable to stand trial.” The defendant was committed to the Montana State Hospital at Warm Springs on May 9, 1962.
The following letter concerning defendant was received by the county.
“MONTANA STATE HOSPITAL
“Warm Springs, Montana
“June 20, 1962
“Mr. William J. Speare
“County Attorney
“Yellowstone County
“Billings, Montana
“Re: NOBLE, LLOYD JAMES
“Dear Mr. Speare:
“This patient entered Montana State Hospital May 10, 1962, pursuant to District Court Order 6363, Thirteenth Judicial District, for care, custody and treatment until restored to competency and declared sane and able to stand trial.
“The patient, on June 1, 1962, was re-evaluated in a hospital clinic meeting and it was recommended he be returned to the jurisdiction of the court.
“He was again examined by the undersigned, June 20, 1962, with also an opinion that he has recovered, and is competent [291]*291to stand trial. It is further my opinion that he is able to participate in his defense.
“Would you please request, or arrange for the sheriff of Yellowstone County to take him into custody at his convenience?
“Sincerely yours,
“s/John G. Freeman, M. D.
“Superintendent
“KGF/mlm
“ec: Yellowstone County Sheriff
“Dr. Gracia”
On July 25, 1962, defendant was returned to the County to stand trial. The trial began on September 10, 1962, and ended on September 13, 1962, when it went to the jury who returned a verdict of guilty on both charges, some twenty hours after submission of the case to them.
The appellant has assigned thirteen specifications of error. It is unnecessary to consider each specification separately due to the fact that some of the specifications involve the same general questions of law. We will therefore group them into six groups, each covering a general legal question.
The first group covers the court’s two instructions on insanity, Nos. 30 and 38 and whether the court erred in giving them and in refusing defendant’s proposed instructions 28, 34, 38 and 39. In so refusing these instructions the defendant claims that his basic defense of irresistible impulse at the time of the crime was destroyed.
Court’s Instructions 30 and 38 covering excusable insanity are as follows:
“INSTRUCTION NO. 30
“Insanity in the criminal law is any defect, weakness, or disease of the mind rendering it incapable of entertaining or preventing it from entertaining in the particular instance the criminal intent which constitutes one of the elements in every crime, and if the defendant had not sufficient reason to be able to judge of the consequence of his act, or was so far deprived of [292]*292volition, or self-control by the overwhelming violence of mental disease that he was not capable of voluntary action and therefore not able to choose the right and avoid the wrong, he was not responsible for any act committed by him while in this condition. ’ ’
“INSTRUCTION NO. 38
“You are instructed that if from all the evidence in the case you believe beyond a reasonable doubt that the defendant committed the crimes of which he is accused, in manner and form as charged in the information, and that at the time of the commission of such crimes the defendant lmew that it was wrong to commit such crimes and was mentally capable of choosing either to do or not to do the act or acts constituting such crimes and of governing his conduct in accordance with such choice, then it is your duty under the law to find him guilty, even though you should believe from the evidence that at the time of the commission of the crimes he was not entirely and perfectly sane.”
While the defendant objected to the giving of the instructions he admits in his brief that they are a proper restatement of our law, but that they needed further explanation of the so-called “irresistible impulse” theory which any one of his four proposed instructions would have corrected. The trial judge held that the above-quoted instructions were sufficient to include this theory of the case.
Here the district judge followed the admonition of this court in the case of State v. Narich, 92 Mont. 17, 9 P.2d 477, where the court said:
“# * * In the trial of such cases in the future, district courts are admonished to make their instructions to juries as plain and simple as possible, and to avoid numerous instructions on the subject, as too many given are confusing and serve no useful purpose. One or two given in the ordinary case should he sufficient.” Emphasis supplied.
In State v. Peel, 23 Mont. 358, 59 P. 169, 75 Am.St.Rep. 529, [293]*293this court not only adopted the general theory of the M’Naghten Rule, but the court went somewhat further in that it broadened the M’Naghten rule to include the doctrine of “irresistible impulse” but limited this rule to insane persons.
The M’Naghten Rules evolved from the M’Naghten Case, Clark & Finnelly, 201, 8 Eng.Rep. 718 (Ch. 1843), wherein the defendant, one Daniel M’Naghten, was tried for the murder of Sir Robert Peel’s private secretary. The defendant was laboring under an insane delusion that he was being hounded by his enemies and that Peel was one of them. The defense made was insanity, and the jury found him “not guilty, on the ground of insanity”. Accordingly, five questions were put to the fifteen judges of England regarding the law of insanity, and from their answers the “right-wrong” rules or M’Naghten Rules are constituted. These Rules in effect lay down as a criterion for determining insanity the test of whether the accused at the time of the doing of the act knew the difference between right and wrong with respect to the act with which he is charged.
Under the Peel case, supra, even if the defendant had the capacity to distinguish between right and wrong, he could still be found not guilty if he could establish that he acted under an irresistible impulse. However, the court, quoting from Wharton’s Cr.Law, § 45, limited the irresistible impulse application to insane persons saying “ ‘the law makes all sane persons responsible for their impulses’ ”.
This court has never determined whether by the application of the right and wrong test, insanity is determined, or whether insanity must first be determined, and then the right and wrong test applied to measure the degree of insanity which renders a man subject to “irresistible impulse.”
Since the Peel ease the court has labored with this two-headed monster in vain to bring it into proper focus. In State v. Keerl, 29 Mont. 508, 75 P. 362, the court seemed to say it was a question for the jury. There they held that giving separate jury instructions on the right and wrong test are in irreconcilable [294]*294conflict with others based on that test as modified by the irresistible impulse test and that the court erred in giving instructions based on different theories, and on a different state of facts. This seems to mean that the court recognized both doctrines, but took the position that one set of facts cannot support an instruction on each test separately, but approved the reasoning and result reached in State v. Peel, where Chief Justice Brantly said such instructions were not contradictory. The majority went further in the Keerl case saying:
“The question whether the defendant in any case was affected with insanity to such a degree as will excuse him from the commission of an act which would be criminal if done by a sane person is one of fact; it certainly is not a question of law.” Emphasis supplied.
The next case State v. Crowe, 39 Mont. 174, 102 P.579, seems to hold that instructions based on the right and wrong test and the irresistible impulse test are not inconsistent.
In State v. Colbert, 58 Mont. 584, 194 P. 145, the court followed State v. Peel, supra, allowing the jury to find irresistible impulse although not specifically instructed on it by the court.
Following the Colbert case, the court next considered the question in State v. Narich, 92 Mont. 17, 9 P.2d 477. Here again the doctrine of the Peel case is adopted and there the court referred to what it believes to be the settled law concerning these doctrines. The court in the Narich case, quoting from State v. Keerl, supra, said:
“ * * the question whether the defendant, when he committed the act for which he is on trial, had the mental power to entertain a criminal intent, and did entertain it, can be reached best by submitting to the jury a test founded solely upon statute. * * * The question for determination being, was the defendant, when he committed the act, sane, or affected with insanity? * * * The jury may determine the fact [of insanity] from the testimony adduced before it, no matter what may be the character of the insanity attributed to the defend[295]*295ant. This includes * * * insane delusions and insane irresistible impulses.’ ” This case has been cited and followed by State v. Simpson, 109 Mont. 198, 95 P.2d 761, and State v. Kitchens, 129 Mont. 331, 286 P.2d 1079. See also Kitchens v. United States (10th Cir., 1959) 272 F.2d 757.
Having reviewed this court’s position on instructions which cover the M’Naghten Rule and irresistible impulse, can we say that the two instructions of the instant case which have been herein set out before, follow this position? As pointed out in State v. Narich, supra, an instruction such as the instant case, No. 38, standing alone is confusing, and unless No. 30 cured it, the jury was not properly instructed.
At the time of defendant’s submission of his Instructions the court refused proposed No. 28 on “irresistible impulse” saying:
“I do think that he has the right to have irresistible impulse more clearly defined so they will understand the nature of the confession and act charged. However, I believe it is fully covered.”
Having just gone over the State’s Instructions he must have been referring to what became court’s Instruction 30. While some 12 instructions on insanity were given in the Narich case covering insanity, and court’s Instruction 30 was one of them, the court, in the Narich case, supra, pointed out, as previously quoted, that the giving of too many instructions on insanity was “confusing and serve no useful purpose. One or two given in the ordinary case should be sufficient.” We observe that the district judge followed the Narich opinion in limiting his Instructions and did not err. Instruction 30 sets forth the basic “right and wrong” test for insanity referred to as the M’Naghten Rule. Instruction 38 sets forth the further test under the doctrine of State v. Peel, supra, which is that a defendant who might not be freed from blame under the M’Naghten Rule may yet be found not criminally responsible if it is shown that while he had sufficient reason to distinguish right from wrong that he was not mentally capable of choosing to avoid [296]*296the wrong and govern his conduct in accord with such choice.
The second group covers whether or not the court’s refusal to grant defendant’s proposed Instructions 28, 34, 37 and 38, which are as follows, was error.
“28. You are instructed that irresistible impulse is an impulse growing out of some mental disease so that the person afflicted, while able to understand the nature and consequences of the act charged against him and to perceive that it is wrong, is unable, because of such mental disease to resist the impulse to do it. It is to be distinguished from mere passion or overwhelming emotion not growing out of, and connected with a disease of the mind. Frenzy arising solely from the passion of anger or jealousy, regardless of how furious, is not insanity.”
“34. You are instructed that insanity in the criminal law is any defect, weakness, or disease of the mind, rendering it incapable of entertaining or preventing its entertaining in the particular instance the criminal intent which constitutes one of the elements of every crime. When one who commits an act which would be criminal if done by a sane person does not know the difference between right and wrong, or, knowing the difference between right and wrong, is mentally unable to refrain from doing the wrong, he is unable to form a criminal intent and cannot be guilty of crime. In such event, in this case, your verdict must be not guilty by reason of insanity.”
“37. In determining the question whether the defendant was insane at the time of the alleged commission of the offenses charged in the Information the jury is to consider all of his acts at the time of, before, and since the commission of the alleged crimes, as such acts and conduct have been shown by the evidence, and the jury should consider the defendant’s appearance and actions at the time of, before and after the alleged ■commission of the offenses, and if the jury is satisfied from a preponderance of the evidence that at the time the defendant shot and killed the deceased, he was so affected in his mind and memory that he was not able to distinguish right and wrong [297]*297and had no knowledge and understanding of the character, quality and consequence of his acts or as a result of a diseased mind did not have the mental power and the will to abstain from them, then he was not legally responsible for any acts then committed by him; and you should find him not guilty by reason of insanity.”
“38. You are instructed that, assuming that the defendant’s knowledge of the nature and quality of his act and his knowledge that the act is wrong, if by reason of disease of the mind, the defendant has been deprived of, or lost the power wrhich would enable him to prevent himself from the doing of the act, then he cannot be found guilty.”
As previously set forth, in considering court’s Instructions 30 and 38, additional instructions were unnecessary, and therefore the failure to give further instructions was not error.
The third group sets forth an appeal to this court to abandon the M’Naghten Rule, broadened by this court to include the theory of “irresistible impulse” as to insane persons, and to adopt either the so-called “Durham Rule”, see Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, or the “Currens Rule” as set forth in United States v. Currens, 3 Cir., 290 F.2d 751, in this case and to all future cases where the defense of insanity has been raised.
In the instant case, considerable evidence was introduced by the defendant regarding his sanity and mental condition. The evidence consisted of testimony of psychiatrists, institutional reports and military medical records. This evidence presented to the jury the question of sanity or insanity, that they finally determined. The instructions were patterned after State v. Peel, 23 Mont. 358, 59 P. 169, supra, and subsequent eases.
Admitting the great divergence of views on the subject, and recognizing the desirability of putting to rest any question as to this court’s position, the author of this opinion has read numerous articles in legal publications, medical and scientific journals relating to the commonly called M’Naghten Rule, Dur[298]*298ham Rule, Currens Rule and that proposed by the American Law Institute. There is an abundance of authority to substantiate any of the Rules or any compromise between them. In addition, the numerous legal opinions concerning the Rules have been carefully considered.
Since its announcement in 1954, the rule of the Durham case has not been adopted in a single state adhering to the M’Naghten Rule, and the most recent decisions expressly reject both the Durham Rule and the proposed American Law Institute rule, and reaffirm M’Naghten, Dare v. State (Okl.1963), 378 P.2d 339; State v. White, (Wash.1962), 374 P.2d 942; Chase v. State of Alaska, (Ala.1962), 369 P.2d 997; Newsome v. Commonwealth, (Ky.1963), 366 S.W.2d 174; State v. Poulson, 14 Utah 2d 213, 381 P.2d 93. While we are not controlled by the number of court cases of other jurisdictions on the question we do believe that they are most persuasive under present day circumstances.
Here the court’s instructions embodied both the M’Naghten Rule as broadened by this court’s inclusion of the so-called “irresistible impulse” test and adequately protected the defendant. Having reviewed the authorities, both legal and scientific, we are unwilling at this time to abandon the established position of this court having found nothing better that would justify a change.
The fourth consideration set forth as error is that the court erred in permitting the state to ask a hypothetical question of Dr. Bruce Hughett in the form in which it did. The question reads as follows:
“Q. Assuming that the medical history of the person to be as it was given you by Lloyd J. Noble, assuming that the following facts relating to the crime be true, namely, on February 16th, a man drove to Hardin, Montana, to seek employment; that while leaving Hardin enroute to Billings, Montana, he formed an opinion, or I should say, formed an intent to kill his ex-wife and another person; that he comes to Billings; that [299]*299he parks his car a half block from the scene of the crime; that he carries a gun to the house in question, places it outside of the door; that he enters the house; that when he entered the house, he sits and talks clearly, coherently to the people in the house; subsequently he steps from the house, picks up the gun, re-enters the house and starts in shooting; that there is a struggle in the course of this incident, and in which his gun was taken away from him, then surrenders to the authorities. I left out some of the remarks that perhaps you are familiar with. And also assume those facts with relation to this question, based on these facts, and assuming those facts to be true, have you an opinion as to whether or not such a person would be able to distinguish between right and wrong at the time of the commission of the act!
“Mr. Symmes: Before you answer, I am going to object on the ground it is in improper form, doesn’t state any facts which he can take into consideration, and he is asking the doctor to base his opinion upon facts that in his own words, none of us know about the—
“The Court: Overruled, you may answer.
“A. I think he should have been able to lmow right from wrong, should have been able to refrain from the wrong and adhere to the right.”
While it is the settled law in Montana that hypothetical questions must be framed by each side to support its theory of the case fairly reflecting all the vital facts, this court held in State v. Crowe, 39 Mont. 174, 102 P. 579, that “The authorities appear to be practically unanimous in holding that a hypothetical question need not embrace all of the evidence respecting the defendant’s mental condition.”
A medical witness, qualified as an expert may give his opinion based upon knowledge obtained and facts observed by him in treating or examining the accused. Underhill’s, Criminal Evidence, (5th ed.), § 461.
The defendant’s contention that it “doesn’t state any [300]*300facts which he can take into consideration, and he is asking the doctor to base his opinion upon facts that in his own words, none of us know about” is not entirely accurate. Dr. Hughett had interviewed defendant three times and had available to him his medical records. It would appear that the objection does not go to his lack of knowledge, but to the doctor’s alleged knowledge not communicated to the jury. All of the facts set forth in the hypothetical question had previously been testified to directly, or through medical records unless possibly minor facts which are unimportant. The fairness of a hypothetical question is largely a matter resting in the discretion of the trial court, whose rulings thereon will not be a ground for reversal in the absence of a showing of an abuse of discretion. While the question was not a model for future law students the court did not abuse its discretion and properly permitted the question. State v. Peel, 23 Mont. 358, 59 P. 169, supra; State v. Crowe, 39 Mont. 174, 102 P. 579; Townsend v. City of Butte, 41 Mont. 410, 109 P. 969; De Sandro v. Missoula Light, etc., Co., 52 Mont. 333, 157 P. 641; State v. Rivenburgh, 11 Utah 2d 95, 355 P.2d 689; State v. Grapper (Missouri App. 1959), 328 S.W.2d 633.
Concerning defendant’s fifth grouping of alleged error Avith reference to the court’s failure to give defendant’s Instruc-. tion No. 44, covering what the court could do in the event defendant was found not guilty, in inquiring into defendant’s sanity, we find the court did not err. This instruction anticipated comment by the prosecutor in his summation. In State v. Simpson, 109 Mont. 198, 95 P.2d 761, this court held that it was not error for the prosecutor to comment in final argument on the fact that defendant if acquitted would walk out of the court a free man. So, even if the prosecutor had in his summation made such a comment, and the record does not disclose that he did, the court’s refusal of the instruction would have been correct under the existing opinion of this court. No [301]*301prejudicial error having been shown the court’s ruling on the instruction was correct.
Beferring now to the sixth grouping of alleged error made by the defendant concerning two confessions introduced during the trial. The first confession was taken at the hospital, approximately one hour after the shooting, where the defendant had been taken to be treated for wounds received around his head and the bullet wound in his arm. The only evidence submitted concerning treatment and medication was produced by the State’s witness. Two police officers, Aukshun and Ealwein, were involved in the apprehension of the defendant and took him to the hospital to have his wounds treated. Aukshun later saw him in the emergency room and Kilwein was with him for about three hours. Neither of these officers testified as to who cared for the defendant’s wounds, what treatment was given, and if any sedative was used, what kind it was.
The third State’s witness, Lt. Ness, was the man who took both confessions from the defendant via the question and answer method and he wrote out the defendant’s statement in a narrative fashion, submitting it each time to the defendant for his signature. There is no testimony, nor does the defendant allege any irregularities in the methods used by Lt. Ness in securing the statement. The defendant was warned each time of his constitutional rights, no promises were made, no threats were made and the statements were witnessed by a third party. So far as the record before us shows they were completely voluntary on the part of the defendant. After being reduced to writing the first statement was handed to the defendant who according to Lt. Ness started reading it, but handed it back to Lt. Ness and said: “You read it” because his eyes were either blurry or hazy. Lt. Ness read it and the defendant signed it. Lt. Ness was asked by counsel for the defendant, “Do you know whether or not the defendant was under drugs at the time?” He replied, “I cheeked with the head nurse on the floor and was advised that he had received some sedation approximately [302]*302an hour before my interview.” As to this first confession there was no showing as to who treated the defendant or as to what sedation was used, nor were any hospital records submitted to show what had been administered. Lt. Ness testified that the defendant was rational, cooperative, and appeared to understand the nature of what was being done and his answers to questions were logical.
Concerning the second confession taken two days later at the hospital, Lt. Ness gave the reason for taking same that in discussing the first confession with the county attorney’s office they felt the question of the sedation made it desirable to get the second confession. When he went to the hospital to talk to the defendant, Lt. Ness said the defendant recognized him and that he checked with the nurse and found out no sedation had been administered to the defendant within an hour and a half or longer; thaat he again properly warned the defendant of his rights, and again he took a statement that was more complete and detailed than the first statement. After Lt. Ness reduced the statement to writing, the defendant read it aloud to Lt. Ness and two witnesses and signed it. To the introduction of the first confession counsel for defendant objected “On the ground it deprives the defendant of the due process of provisions of the Fourteenth Amendment.” He was overruled. To the introduction of the second confession he made the same objection and was overruled.
The question of the admissibility of a confession which was obtained while the defendant was allegedly under the influence of a sedative given for the treatment of a wound is a matter of first impression in this court. However, numerous other states have decided this question and may be looked to for guidance.
This court held in State v. Berberick, 38 Mont. 423, 100 P. 209, that a confession taken down in writing, but not in confessor’s exact language, by signing it and adopting its language makes it his own.
[303]*303The defendant cites for his authority in ruling out the first confession three cases. State v. Graffam, 202 La. 869, 13 So.2d 249; Edwardson v. State, 255 Ala 246, 51 So.2d 233, and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948. All three of these cases are clearly distinguishable on the facts and are not controlling in this case. In State v. Graffam, supra, the defendant was seriously wounded and evidence was introduced that he was under morphine at the time of the confession. The facts in Edwardson v. State, supra, show that the confession came after constant coercion and repeated interrogation of a woman who was ill and to whom the city physician had given narcotics to alleviate the pain. In Reck v. Pate, supra, the United States Supreme Court said: “The question in each case is whether a defendant’s will was overborne at the time he confessed.”
As to the first confession a doubt existed as to whether or not defendant was under sedation so the second confession was obtained. There is no contradiction between the first and the second confession. The only difference is that the second is more detailed than the first. The authorities cited by defendant deal with cases in which a narcotic was administered, no such question is raised here, where only a sedative was given. Accepting the fact that some sedative had been administered within an hour before the first confession does not ipso facto make it inadmissible. The necessary element to determine is whether at the time of the confession it was made voluntarily and of his free will. See People v. Waack, 100 Cal.App.2d 253, 223 P.2d 486; People v. Grasso, 142 Cal.App.2d 407, 298 P.2d 131; People v. Russo, 168 Cal. App.2d 747, 336 P.2d 628; People v. Lane, 56 Cal.2d 773, 16 Cal.Rptr. 801, 366 P.2d 57.
Assuming arguendo that the first confession was obtained while defendant was subject to sedation, there are no facts therein related which do not appear in the second confession, which the record clearly shows defendant read, understood and signed. If the foundation for the admission of the [304]*304first confession be deemed insufficient, its admission was merely cumulative and we fail to perceive any prejudice that could result to defendant in view of his later or second confession.
In summation, the weight of the evidence in a criminal matter is for the jury to determine in the first instance. If the circumstances reasonably justify the verdict, this court must assume existence of every fact which the jury could have reasonably deduced from all the evidence to reach its verdict.
During the course of a complicated trial, such as this was, both sides in the heat of trial make certain errors. It is the duty of this court to ascertain whether or not the errors are prejudicial for only upon such errors may a case be returned to the district court for retrial. Having carefully examined each alleged specification of error set forth by the defendant we find no prejudicial error and affirm the judgment of the district court.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICE CASTLES concur.