HR. JUSTICE PIGOTT
delivered, the opinion of the court.
Thomas Tighe was accused by information of the murder of one Paul Koch. lie was convicted of murder of the second degree, and appeals from the judgment and from the order denying him a new trial.
1. Before the jurors were sworn, the defendant challenged the panel upon the ground that the jury commissioners, in preparing the list for 1902, had intentionally omitted therefrom certain persons who were known to them to be exempt from jury duty, although such persons were also known to them to be in all respects competent jurors. In the challenge the defendant offered to prove the alleged facts by the oral testimony of the jury commissioners. To the challenge the state excepted by interposing a demurrer to the effect that the facts alleged were insufficient in law. The demurrer was sustained, and the jury impaneled, the defendant excepting.
The attorney general contends that the question of whether the court erred in sustaining the demurrer to the challenge cannot be considered here. In substance, his argument is as follows: There is no provision in the Penal Code permitting a demurrer to a challenge; the only exception which may be taken with reference to the decision upon such'a challenge is that authorized by Section 2170 of the Penal Code, providing for exceptions by the defendant to a decision of the court in disalloiv-ing a challenge to the panel; it does not appear that the challenge was ever disallowed; therefore the error assigned is not before this court. His conclusion does not follow. Section 2036 of the P’enal Code reads: “If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the stenographer, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.” , If, as against the exception, the" challenge be [330] found sufficient, tbe court may permit the exception to be withdrawn, and the facts alleged to be denied; if the exception be allowed, the challenge may be amended by the court’s permission. (Section 2037, Penal Code.) If the truth of the matter set up' in the challenge be denied, the court must try the issue of fact. (Section 2038, Id.) If the challenge be allowed, either upon an exception for insufficiency in law or upon a trial of the issue of fact, the jury must be discharged. If a challenge be disallowed in either case, the jury is to be impaneled. (Section 2039, Id.) True; the Penal Code does not designate as a demurrer an exception to- a challenge for insufficiency of the facts stated therein; but the mere name is not important; such an exception is equivalent to a demurrer, for the denial of sufficiency admits the allegations to be true in point of fact. It is immaterial whether the denial of sufficiency be expressed by the use of the word “exception” or the word “demurrer;” each performs the same office. So much for the name. As to the statement that the challenge was not disallowed, it is enough to say that the action of the court in sustaining or allowing the demurrer or exception and impaneling the jury was a disallowance of the challenge. These are the only technical objections suggested, and the question of whether there was error is, therefore, presented for decision.
The persons whose names were omitted from the list were competent jurors. Their competency was known to the chairman of the board of county commissioners, the county treasurer, and the county assessor, who were the jury commissioners. They intentionally omitted the names from the list. Section 232 of the Code of Civil Procedure declares that- persons engaged in certain pursuits or holding certain public offices are exempt from- liability to serve as jurors. All the persons so excluded were exempt from liability to act as jurors, but, if they had been summoned, they would be required to serve, unless they seasonably claimed the benefit of the exemption. Section 241 of the same Code prescribes that the jurv commissioners “must select, from the last assessment roll of the county, and make a list of the names of all persons whom they believe to be [331] competent and qualified to serve as trial jurors.” As bas been said, the commissioners purposely excluded from the list the names of persons known to them to be in every respect competent jurors. Not every deviation from the law in making a jury list will be cause for challenge to the panel. Many errors and mistakes are to be overlooked. All that may reasonably be required is that the commissioners, in selecting’ the names, in good faith substantially comply with the law. The omission of those whom they know or believe to be competent and qualified is an irregularity, which will, under some circumstances, amount to a material departure from the law, and a consequent denial of the litigant’s right to have a proper list in the jury box.
We are satisfied that the omission in the case at bar was a mere irregularity, not affecting any substantial right of the defendant. The list prepared by the commissioners is required to be delivered to the clerk of the district court, wlm places the name of each person thereon in the jury box. (Sections 242, 243, Code of Civil Procedure.) Jurors for a term or session of court are selected by drawing names from the box. Subdivision 3 of Section 262 of the Code of Civil Procedure provides that, “if the name of any person is drawn from said box * * * who is exempt from jury service, and the fact shall be made to appear to the satisfaction of the court, the name of such pei*-son shall be omitted from the list, and the slip of paper having such name on it shall be destroyed, and another juror drawn in his place.” The names of the persons drawn shall be certified to the sheriff for service. Now, the names omitted by the jury commissioners from the list furnished by them were of persons admittedly exempt from jury service. If the names of such persons had been on the list, it would have been the duty of the district court, the fact of exemption appearing, to omit them in drawing and selecting the jurors for the term; in other words, the court is commanded by the statute to exclude those appearing to' be exempt from service. How, then, can the defendant have been injured by the irregular action of the jury commissioners in omitting names from their list which the court, if advised of the exemption, was required to omit from its list ? [332] Tlie tlieory of tlie statute is tliat- in drawing jurors for a term or session persons exempt- wifi not ordinarily be selected, and will never be selected if tlie exemption is shown to tlie court; but if they are selected and summoned, they must serve, unless they assert the privilege. The persons whose names were omitted by the commissioners were exempt in point of fact, and the defendant was not entitled to have them, or any of them, drawn by the court or summoned by the- sheriff. To hold the challenge good in this case would be to adhere strictly to the letter of Section 241 without considering other provisions which serve to express the purpose- of the legislative assembly. Counsel for the defendant cite some remarks in State v. Bowser, 21 Montana Reports, 133, 139, (53 Pac. 179), in support of the contention that the challenge should have been allowed. The remarks were not necessary to the decision, and wtere obiter, for this court held that the offer to prove the averments of the challenge was not sufficient. It may further be observed that the remarks would probably not have been made if the court had considered Subdivision 3 of Section 262, supra. The court rightly disallowed the challenge.
2. At the beginning of the trial the defendant objected to the appearance in behalf of the state of R. R-. Purcell, Esq., whose name had, on motion of the’county attorney, been entered as an assistant to that officer, on the ground that Mr. Purcell had been employed by private pi’osecutors, by whom-, and by whom alone, he was to be compensated. In support of the objection the defendant offered to prove the truth of the aver-ments, but the court re-fused to permit this to be done, and overruled the objection. Much might be said in favor of the action of the court, and much against it. Many courts declare that counsel employed and compensated by private persons may, with the court’s consent, assist in the prosecution of criminal cases. (State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; U. S. v. Hanway, 2 Wall. Jr. 139, 26 Fed Cas. 105, 129 (No. 15,299); Polin v. State, 14 Neb. 540, 16 N. W. 898; Bradshaw v. State, 17 Neb. 147, 22 N. W. 361, 5 Am. Ct. Rep. 499; State v. Bartlett, 55 Me. 200, 220; Hopper v. Com., 6 Grat. 684; [333] Siebert v. State, 95 Ind. 471, 476; and see 1 Bish. Cr. Proc. Sec. 251, and People v. Blackwell, 27 Cal. 66.) Otlier courts have interpreted statutory provisions prohibiting the state’s attorney from receiving any compensation from or in behalf of any prosecutor for his services in a criminal case as preventing the appearance for the state of counsel employed by or in behalf of private persons. (Biemel v. State, 71 Wis. 444, 37 N. W. 244; Meister v. People, 31 Mich. 99; People v. Hurst, 41 Mich. 328, 1 N. W. 1027; Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534; and Com. v. Williams, 2 Cush. 582.) For nearly forty years the practice in the territory and state of Montana has been to permit counsel employed and paid by private persons to assist in the prosecution of criminal cases. This practice has amounted to a contemporaneous interpretation of the law, which, in view of the doubt touching the correct solution of the question, should not be disturbed or changed Toy the court. The-writer of this opinion, speaking for himself only, thinks the practice is in accord with the law, irrespective of the contemporaneous interpretation. The legislature may abolish the practice. As the matter stands at present, the district courts may, in their discretion, permit such coTinsel i» appear and participate in the trial of criminal actions as assistants to county attorneys. In State v. Whitworth, 26 Montana Deports, 107, (66 Pac. 748), the question now raised was not involved.
3. The defendant argues that the verdict is contrary to, and without support in, the evidence. He insists that the circumstances of the homicide show that the killing was without malice, and was either manslaughter, or justifiable on the ground of self-defense. He prayed the court to direct the jury that they must find him guilty of manslaughter or acquit him altogether. This the court refused to do.
The defendant was foreman of the East Pacific mine. There was evidence to show that he had general supervision of the kitchen, of the dining room, and of the entire mine, and was empowered to hire and discharge the men; and tbat one of his duties was to see that the meat and other supplies were weighed, and to verify the bills. Koch, the decedent, was the cook. On [334] March 6, 1902, a few minutes after 12 o’clock noon, the defendant entered the kitchen on his way to the adjoining dining room, where dinner was being served to 40 or 50 men employed at the mine. He asked Koch whether he had weighed the meat "that had been delivered just before noon. Koch answered in the negative, and the defendant then said he would see that the meat was weighed thereafter, and moved away from Koch' and toward the swinging door leading into the dining room. On the part of the state the evidence tended to prove that Koch then said that, if the defendant wanted the meat weighed, he could do it himself; that the defendant told Koch not to get too “gay” or too. “funny,” to which Koch answered by an obscene invitation ; that the defendant then walked towards Koch, who struck the defendant on the nose and eye, knocking him against the wall; that they then “clinched” and fell to- the floor, and in the struggle went through the door of the dining room; that, after struggling there, the defendant grasped a knife from the bread table, and stabbed Koch in the heart at a time when Koch had ceased fighting, and had released the defendant, and then struck Koch twice over the head with the knife. There was evidence on behalf of the defendant to the effect that when he asked Koch if he had weighed the meat the latter said it did not “have to be weighed,” and defendant told Koch it was his duty to weigh it, upon which the obscene invitation was extended to the defendant ; that the defendant then told Koch not to “get funny,” and Koch replied by saying, “Get out of here, you son of a bitch,” at the same time starting rapidly toward the defendant; that when he reached the defendant he struck defendant on the cheek, and that, to protect himself, the, defendant grappled with Koch, who pressed him to the floor, pushed him toward the wall, and shoved him through the door between the kitchen and the dining room; that as they went through the door the defendant fell against a table, striking his head on the corner, and cutting it; that the defendant was down on his hands and knees and partly on his side, with Koch over him, either kicking him on the head or attempting to do so, and kicking him in the ribs; that while on the floor, with Koch on top, Koch struck him on [335] tbe back of tbe bead, at tbe same time calling bim a vile name, and saying be would “fix” bim; that Koch then grasped tbe defendant by tbe back of tbe neck, and slnng bim onto or against tbe bread table; that tbe defendant’s bands struck tbe table, and, seeing a knife, “be grabbed” it; that, after tbe defendant-bad secured tbe knife, Koch swung him around against tbe window; that there was no cessation of the struggle from tbe first blow by Koch until after tbe killing; that, when tbe corner of the table was reached in the fight, tbe defendant struck Koch on tbe bead with a knife, but that be was not conscious of having stabbed Koch; that defendant considered himself to be in danger of great bodily injury or of losinig bis life at tbe bands of the decedent, and acted in self-defense throughout. Koch was tbe larger man. There was also evidence of a prior threat by Koch to kick tbe defendant out of tbe kitchen, and of some ill feeling on the part of tbe defendant towards Koch, or of dissatisfaction with bim. Tbe evidence was sufficient to justify a verdict finding tbe defendant guilty of any grade of felonious homicide. If the killing was unlawful, and done with malice aforethought and deliberation, it was murder of tbe first degTee; if unlawful, and with malice aforethought, but without deliberation, it was murder of tbe second degree; if tbe killing was unlawful, but without malice, it w'as manslaughter; and, if tbe killing was done in necessary self-defense, it was justifiable, and therefore lawful. Tbe instruction requested was properly refused.
4. One McPherson, a witness for tbe defendant, on cross-examination testified that bis evidence before tbe examining magistrate was given while be was drunk, or at least under tbe influence of liquor. Part of that testimony was read to tbe witness, and thus used for impeachment purposes, but tbe writing was not introduced. Defendant’s counsel then offered tbe testimony of tbe witness as taken at tbe preliminary examina-, tion for the purpose of showing that such testimony in its entirety was not contradictory of tbe testimony delivered by tbe witness on tbe trial. To its exclusion tbe defendant excepted. In this there was no- apparent error ¡ In tbe first place, tbe de[336] fendant bad the opportunity — of which he availed himself — ■ of interrogating the witness further as to matters formerly stated by him; and, secondly, it does not appear what the remainder of the testimony given on the preliminary examination was. It is not embraced in the record, and we have no means of ascertaining whether or* not it was consistent with his last testimony. The bill of exceptions should contain either a copy of the paper sought to be introduced or the substance of its contents. Without this we cannot consider the question.
5. Certain persons, who were eyewitnesses- of the killing, were not called by the state. The defendant asked the court to require counsel to examine them. This the court refused to- do, and the defendant excepted. Thereupon the defendant called them as his own witnesses. It is discretionary with the trial court whether all persons who are shown to have been present at a homicide shall be sworn and examined in behalf of the state. Exercise of its discretion will be corrected only in case of abuse. (State v. Rolla, 21 Mont. 582, 55 Pac. 523; Section 2082, Penal Code.) While the court might well have required all the eyewitnesses to be sworn, we are not prepared to say it erred in refusing to do so. Nor did the court err in excluding as immaterial the question put to the witness Johnston on direct examination by the defendant as to whether he had not been subpoenaed by the state. (Mann v. State (Ala.), 32 South. 704 (not yet officially reported). Standing alone, the question seems designed to elicit immaterial matter.
6. Evidence of the conduct and acts of the defendant and Koch, and each of them, from the inception of the affray to its end, was competent and relevant. Hence proof of the fact that neither called for aid or assistance while struggling was admissible. It was part of the res gestae. The court rightly received it.
1. The defendant testified that he did not intentionally stab Koch; that he had no recollection of stabbing him; his theory being that the stabbing must have occurred by reason of the knife coming in contact with the body of Koch as he and Koch swung towards the window away from the table on which the [337] knife taken by the defendant had been. The defendant offered to prove that in less than a minute after the fatal stroke, while he was being led away in a highly excited and angry condition, and with a bleeding face, at a point from 40 to 50 feet distant from the spot where the killing occurred, one Bell remarked that he was going for a physician, for Koch, and the defendant answered, “Ilell, he does not need a doctor; he is not hurt.” The court sustained an objection on the ground of incompetency and immateriality, and the defendant excepted. Section 312G of the Code of Civil Procedure provides that, where “the declaration, act or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction.” Section 314G of the same Code declares: “In conformity with the preceding provisions, evidence may be given upon a trial of the following facts: * * ’ * (7) The act, declarar tion or omission forming part of a transaction, as explained in Section 312G.” “Bes gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants under the immediate spur of a transaction, becomes thus part, of the transaction, because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is not hearsay. It is part of the transaction itself. And so long as the transaction continues, so long do-acts and deeds emanating from it become part of it, so that in describing it in a court of justice they can be detailed. The question is, is the evidence offered that of the event speaking through participants, or that of observers speaking about the event ? In the first case, what was thus said can be introduced without calling those who said it; in the second case they must be called. Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary, in fact, with each particular case. The distinguishing feature of declarations of this class is that they should be the necessary [338] incidents of the litigated act; necessary in this sense; that they are part of the immediate concomitants or conditions of such act, and are not produced hy the calculated policy of the actors. They need not he coincident as to time, if they are generated by an excited feeling which extends without break or let-down from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it or of action which it immediately produces. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or 'declarations, become in this way evidence of the character of the act.” (Sections 262, 263, Whart. Or. E.v.) We are of the opinion that the declaration offered in evidence should have been received. It was so near the time of the homicide, and followed it so closely, that it may well have been a spontaneous expression, immediately and unconsciously associated with the principal act, of the belief of the defendant and of the state of his mind. It should have gone to the jury for what they might consider it worth. If, upon all the circumstances, the jury should be of the opinion that the declaration was instinctively made under the immediate and compelling influence of the affray, it must be consider^! by them as evidence tending to- show the intent of the defendant at the time the fatal thrust was given; if, on the other hand, the jury should believe the declaration was not spontaneously made under the immediate spur of the transaction, it must be deemed self-serving, and therefore not evidence in his favor. This question was one for the jury upon the same principle that the question of whether alleged confessions admitted in evidence were or were not voluntary — 'the evidence with respect to- the question being conflicting — is submitted to- the jury. This rule as to confessions is clearly correct, and finds support in Commonwealth v. Preece, 140 Massachusetts Reports, 276, (5 N. E. 494; Commonwealth v. Kennedy, 135 Massachusetts Reports, 543; Commonwealth v. Crossley, 162 Massachusetts Reports, 515, (39 N. E. 278); and State v. Grover, 96 Maine Reports, 363, 366, (52 Atl. 757). It is as clearly applicable to the ques[339] tion of fact whether declarations are part of the res gestae whenever that question arises upon conflicting evidence, or depends upon contradictory inferences either of which may be fairly deduced from uncontradicted evidence. It is the province of the court to determine the question of the admissibility of a declaration. Of course, if a declaration favorable b> the party mating it is clearly not part of the res gestae, it should be excluded by the court; otherwise it should be allowed to go to the jury, to be rejected by them if merely self-serving, but to be considered if the transaction spoke through the declaration. Territory v. Clayton, 8 Montana Reports, 1, (19 Pac. 293), and State v. Pugh, 16 Montana Reports, 343, (40 Pac. 861), are not opposed to the holding in the present case. In each of the cases the declaration of the defendant was a self-serving narrative of past events. The court committed prejudicial error in sustaining the objection.
8. Counsel for the defendant contends that instructions numbered 22 and 23 are prejudicially erroneous. Though they are not technically accurate, we are not prepared to agree with counsel that either was harmful. An opinion thereon is re>served. Under the circumstances of the case the instructions referred to should have been, in effect, these: “(22) On the other hand, if you believe from the evidence that the defendant commenced the affray by assaulting Koch, or by so menacing him as to induce in Koch a reasonable belief that he was in immediate danger of physical violence at the hands of the defendant, then the defendant is not entitled to a verdict of acquittal on the ground that he killed Koch in self-defense, unless the defendant really and in good faith endeavored to decline any further struggle, and in some way, by words or conduct, notified Koch thereof, and thereafter acted only upon a well-grounded fear in him, as a reasonable man, that he was in imminent danger of being killed by, or of receiving great bodily harm from, Koch. The words used by the defendant did not constitute an assault, nor were they sufficient to excite in Koch a reasonable fear that he was about to be assailed by the defendant. (23) If you find from the evidence that at the time he stabbed Koch [340] tbe defendant did not, as a reasonable man, believe be was in imminent danger of losing Ms life or suffering great bodily injury at tbe bands of Koch, tben tbe killing was not done in self-defense, but was either murder or manslaughter, no matter who began tbe affray, and even though tbe defendant bad really and in good faith endeavored to decline further struggle, and bad so-informed Kocb.”
9. As tbe cause must be sent back for a new trial, we shall indicate briefly our views upon tbe remaining- specifications of error.
(a) The defendant asked each juror, when called and sworn on tbe vow dire, whether be was a member of tbe Knights of Pythias, or of tbe order of Odd Fellows, or of tbe order of Sons of Hermann, tbe purpose being to- enable tbe defendant judiciously to- exercise bis peremptory challenges. His counsel stated that tbe decedent bad probably been a member of one or more of those secret societies. Hpon objection tbe question was excluded as immaterial, irrelevant and improper. Before tbe jury were sworn to- try tbe cause, tbe defendant bad exhausted bis peremptory challenges. A defendant should be permitted great latitude in examining jurors so as to be in position intelligently to exercise bis challenges, and whenever there is a fair doubt as to tbe propriety of a question it is better to allow it. (Territory v. Campbell, 9 Mont. 16, 22 Pac. 121.) Tbe questions were proper (Burgess v. Manufacturing Co. (Tex. Civ. App.), 30 S. W. 1110; Abb. Tr. Brief. Civ. p. 54; State v. Mann, 83 Mo. 589; Watson v. Whitney, 23 Cal. 376 ; Lavin v. People, 69 Ill. 303; Union Pacific Railway Co. v. Jones, 21 Colo. 340, 40 Pac. 891), and tbe court erred in excluding them. Whether tbe error was prejudicial we do not decide.
(b) Tbe directions given by tbe county attorney to- tbe witness Wardwell as to tbe preparation by him of a map of tbe rooms in which tbe affray took place, and which map- was used by tbe state on tbe trial, were sought to- be proved on bis cross-examination by tbe defendant. Tbe accuracy of tbe -map was disputed. Tbe testimony sought to be adduced was competent and relevant, and should have been admitted.
[341] (c) Tbe defendant’s cross-examination of Stratton was unduly restricted by tbe court, and tbe error does not seem to have been wholly cured.
(d) Tbe witness Bloomquist testified for tbe state that tbe expression on Koch’s face at tbe time be was stabbed indicated fear; be “seemed to be scared.” Tibbetts, a witness for tbe state, testified that in tbe February preceding tbe homicide the defendant, in talking about Koch, was very emphatic in bis language, and tbe expression on bis face showed anger towards Koch. Tbe defendant suggests that the witnesses were permitted, in so far as their testimony as to anger and fear is concerned, to state inferences from facts, instead of tbe facts themselves, and that such testimony should bave been stricken out. The objection is without merit. E'acb statement was “a shorthand rendering of facts,” and was admissible. (State v. Lucey, 24 Mont. 295, 302, 61 Pac. 994.)
(e) Tbe defendant’s cross-examination of Tibbitts. was improperly limited, but tbe error seems to bave been cured; and so with the cross-examination of Bloomquist.
(g) The court, against tbe objection and over tbe exception of tbe defendant, limited tbe time of argument to tbe jury to one hour and three-quarters for the state and to a like period for tbe defendant. Tbe trial consumed five days, and many witnesses were examined. Tbe ease was a capital one. We cannot agree with tbe assertion made by tbe attorney general that tbe court bad tbe right, in its discretion, to submit tbe case to the jury without giving defendant’s counsel an opportunity to argue it. Such an act would be a direct and flagrant violation of rights declared and guarantied by tbe constitution. To determine in advance just bow long a time will be required for counsel to. present bis client’s case to. a jury is a delicate task. There is always danger that tbe time may be too. short, and injustice may result. It is always better in prosecutions for felony, and especially in those involving tbe life of a human being, to allow all tbe time counsel desire to use, subject, of course, to tbe power of tbe court to check excursions and prevent needless repetitions. At least one respectable court has held [342] that it is error for tbe judge to- predetermine tbe time allowed for argument in any ease of felony. (Williams v. State, 60 Ga. 367, 27 Am. Rep. 412.)
In so limiting tbe time for argument by defendant’s counsel, tbe court erred.
Tbe other specifications are palpably devoid of merit, and not worthy of mention. Far tbe errors discussed, tbe judgment and tbe order denying a new trial are reversed and tbe cause is remanded.
Reversed and remanded.
Me. Chiee Justice BeaNtly: I concur.