START, C. J.
The defendant, William Williams, on May 19, 1905, was convicted in the district court of the county of Ramsey of the crime of murder in the first degree upon an indictment charging him with having, on April 13, 1905, killed John Keller by shooting him with the premeditated design to effect his death. On June 30, 1905, the court made its order denying the defendant’s motion for a new trial, and he appealed from the order.
While the defendant’s assignments of- error do not challenge the sufficiency of the evidence to sustain the verdict of the jury, yet a brief [354]*354statement of the admitted facts of the case and of the evidence are essential to a proper consideration of the assignments of error relied upon by the defendant for a reversal of the order.
The defendant at the time of the homicide was twenty-eight years old. He was born at St. Ives, Cornwall, England, and came to this country some eight years ago, and up to the time of his arrest he had worked at various places as a laborer, miner, and steamfitter. In June, 1903, in the city hospital of St. Paul he made the acquaintance of a boy, John Keller, then fourteen years of age. The evidence is practically conclusive that the result of this acquaintanceship was a strong and strange attachment on the part of the defendant for the boy. The evidence also clearly establishes the following facts, namely: The boy left his home and roomed with the defendant at different places in the city of St. Paul, and in the summer of 1904 the defendant took the boy with him to a number of different places where he worked, among others, to Assinniboine where he remained ten days, then returning to St. Paul, thence to Winnipeg, and on December 15 the boy returned to his home in St. Paul. The defendant followed in some ten days thereafter and joined the boy at St. James, this state, where he had gone in the meantime and was with his father. Here the father and the defendant had a serious altercation about the defendant’s conduct with reference to the boy; the father telling the defendant that the boy should not return with him to Winnipeg and that he would put the boy in the Reform School sooner than let him go with the defendant. But despite the father’s protest the defendant succeeded in taking the boy with him back to Winnipeg. Some three weeks later the boy received a letter from his mother, with a ticket to St. Paul, urging him to come home. He complied with her request, and the defendant followed him February 13 and there met him, and told the father that he was going South, but was coming back in the spring to take the boy to Winnipeg. The father again told him that the boy should not go with him. The defendant then went South, and from St. Louis, Missouri, he wrote and sent to the boy several letters, of which the following are fair extracts:
March 3, 1905, he wrote:
Say, why don’t you write me? I wrote you two letters, and received no answer. What is the matter? If I do not hear [355]*355from you soon, will be in St. Paul to see you. Am not working yet, and am not looking for any, as I guess I will have to go back to St. Paul and see you. Had to borrow money to send this letter, as I am flat broke. Have not felt well lately; besides not hearing from you bothers me. Now, Johnny, why have you not answered my letters ? Either you think that now I am gone you can make a fool of me, as you have before, or else you wish me back. You cannot fool me again as you have, because I won’t stand for it; so you had better cut it out. You have been playing with me long enough now, Johnny; so it is time you tried something else for a change. Keep your promise to me this time, old boy, as it is your last chance. You understand what I mean, and should have sense enough to keep your promise.
Four days afterwards he wrote:
Well, Johnny, old boy, I think you mean all right, and you must not think I am sore when I tell you anything, because I am not; and I want you to believe that I love you now as much as I ever did, and I intend to do what is right and that everything will be all right soon. Time goes slow, but it won't be long before we will be together, either in Winnipeg or St. Louis, or somewhere else, and then there won’t be any reason for us to write again, because we won’t part for anything or any one. You know what we agreed upon, and we will stick to it, you bet.
The next day he wrote:
Your letter just received. I note all you say. Also note that you did not give me straight answers to my letter. Now, Johnny, I think it time we cut out all nonsense. It is no use us quarreling by letter. You know how we stand, and also that I won’t allow any one to get the best of me this time. I have your promise, and insist on your keeping your word. I shall stay here for a few days waiting for an answer to this letter. Now, as your letter will make quite a difference to me, as it will decide which way I go when I leave here, I wish you to give me a straight answer to my question. Do you intend to [356]*356go to Winnipeg with me on the 1st of June or not? I had one chance, but you know why I did not take it. You also know that I am trying to pass the time until May or June, as you know after that date we won’t be parted again. We will be together then, one way or the other. This is not a blow, John; and I don’t see that you can say that I am anything like that anyhow. You know that when I say I will do anything I do it, no matter what it is. Say, John — say, Johnny, answer this right away, and I am waiting here for an answer, and intend to leave as soon as I get it. If your letter is satisfactory, shall be in St. Paul some time in May. If not, I shall see you in a few days.
March 13 he wrote:
Well, I got yours O. K., and it was something like I expected. So you won’t come to St. Louis. Well I won’t stay here, either. When you get this, I will be on the road again. You say I cannot blame you if I am not working. Well, I think different. I blame you for anything and everything that happens and has happened. You did not say all you might have in your letter, but your letter makes me think you intend to try and give me the worst of it once more. Do you mean to say that you refuse to go to Winnipeg, when I ask you to? Do you, John? I do not mean to go to St. Paul right away, but if I thought you intend to go back on your word I should be in St. Paul when you get this. I believe you have some sense left, though I know that any one can get you to promise anything or do anything they wish. I cannot believe you have gone back on me, and have good reason to think that others are doing this, not you. If I really thought it was yourself, I would see you so quick as the train would get me there, and you know what would happen.
March 28th he wrote:
I also wish to say that you had better keep my letters to yourself, as the main reason you are going with me is that other people know too much about us already. Now, John, cut out all nonsense from your letter, and write as soon as possible. If [357]*357I was in St. Louis and got your letter, I should either be in St. Paul or on the way now. You knew it, too, when you wrote that last letter. I do not wish to leave here until the time I stated, so do not make me unless you wish to see me very much.
And ten days next before the homicide he wrote:
I wrote you two letters last week — one Sunday and one Tuesday evening. I have been expecting a letter from you, but have not got it. Am writing you these lines to -say, if you have not already written, I wish you to write as soon as get this. What do you wish me to do? Do you wish me to quit here, same as you have got me to quit every job I got lately? Well, I don’t want to say anything out of the way in this letter.
On the morning of April 12, the day the boy was killed, the defendant arrived in St. Paul, and went to the boy’s home at No. 1 Reid Court, consisting of two flats. The one downstairs was occupied by Mr. Kline, his wife, and children. The one upstairs was the Keller home. The boy’s father was then away from home and the mother asked the defendant, when he made his appearance at her home, what he came back for, when he knew that he was not wanted. The defendant remained at the house for a time, and then went away. He, however, returned to the Keller home about eight o’clock in the evening. Mrs. Kel-’ ler and the boy were the only persons there, and they and the defendant were the only persons there until after the boy and his mother were shot, about midnight. The boy, while in his bed, lying on his right side, was shot twice — once in the back of the head, and again in the back of his neck. According to the medical testimony the wounds were such as to render any physical movement after he was hit impossible, and immediately unconsciousness followed. The wounds were powder-marked and the hair singed. The mother was shot at the same time in the front part of her body. Each died from the wounds so received. It is admitted that the defendant was present at the time of the shooting and that his revolver was found at the place where it occurred. Thus far there is no substantial controversy as to the facts.
The state called Mrs. Kline, the lady who occupied the downstairs flat, as a witness, and she testified to the effect that between twelve and [358]*358one o’clock of the night in question she heard a shot, followed by a fall, in the flat above her, and within two or three minutes thereafter the defendant knocked at her door and told her to go upstairs and stay with Mrs. Keller; that she went to Mrs. Keller at once, and found her in her kitchen with her nightgown on, sitting in a rocking chair and bleeding profusely from a wound; that Mrs. Keller, as soon as she saw the witness, said:
Bill shot my boy nearly dead, and then shot me. You take a lamp and go and see if my boy is dead.
And, further, that the witness then went into the front room and found him in bed, lying on his right side, his face to the wall, with two bullet holes back of his left ear. The witness’ testimony was not entirely consistent as to time and some other details. The state called the officer in charge of the police station, who testified to the effect that the defendant appeared at the station on the night of the shooting and said that he had shot some one up at No. 1 Reid Court, and asked that a doctor be sent up there at once, and, further, that the defendant, upon being asked where his revolver was, replied that it was in the room, and that the witness afterwards found it in the Keller flat. Dr. Moore, a witness on behalf of the state, testified that he asked the defendant why he shot the boy, and his reply was that he did not know, only he wanted the boy to go away with him, and he would not go. This conversation was at the police station at about one a. m.
The defendant’s testimony as to the occurrence is, briefly stated, to 'the effect that he had not slept for three nights, and had been drinking during the day, and went to the Keller home in the evening of April 13; that Mrs. Keller acted queerly, scolded, paced to and fro in the middle of the room, told him that she would not let the boy go with him, that she would see both of them dead first but finally she made up a bed and told the defendant and the boy to go to bed; that before he did so his revolver was placed in his trunk, which was locked, and the key given to Mrs. Keller; that after they had gone to bed she continued to talk, and, being nervous, he could not sleep by reason of the noise she made; so he got up, dressed, started to go out by a door near the head of the boy’s bed, when she rushed in and seized him, saying, “You . can’t go out of here nowthen he lost all consciousness of what was [359]*359going on, and the next thing he knew he was in her room with the revolver in his hand looking into the barrel and the room was full of smoke; that he- saw her, and she did not appear to be hurt, but she told him she was, and to go and call Mrs. Kline; that he rushed down to get Mrs. Kline, knocked at her door, she responded, and then he made haste to obtain a doctor, and, not knowing where to go for one, he ran to the police station and told the officer in charge that some one was hurt and asked him to send up a doctor; that he was then locked up; felt dizzy and sick the rest of the night; that he had been subject to headaches and dizzy spells all his life; and, further, that he had a great love for the boy, and did not know that he was shot until the officers told him of it.
The trial judge, at the close of the opening statement of defendant’s counsel outlining his defense, inquired of counsel whether his defense was insanity or intoxication. Counsel replied that:
Our defense is, if the court please, that in the frenzy of the moment, the condition in which he was at that time having been brought about by the use of liquor and anger supervening, he had absolutely no remembrance of what took place; that he is not able to say, and that he never has said, what took place at that time; and, if the court please, we claim that that is a frenzy resulting from the mental condition, the condition of his mind at the time — a diseased condition of mind, resulting from liquor and supervening anger; that he had no intention, if the court please; we claim that he did not do it.
The Court: You rely upon intoxication, then, I take it, as the basis of your defense ?
Counsel: Not that, if the court please. We don’t say that the intoxication caused the lapse of consciousness of what was going on; but we do say that the supervening anger caused a complete lapse of memory and consciousness, and that he was not conscious of what was going on — was not conscious at that time, has no recollection whatever of what took place. That is the defense we make.
Mr. Cormican: And has no recollection of ever having a revolver in his hand until he discovered himself in the middle of the room.
[360]*360Mr. Clarke: He has no recollection, if the court please, of his having had a revolver, and we think the circumstances will show that he didn’t have it, at that time, in his hand, and that it only came into his hand in the course of the struggle; that he has no remembrance whatever of what took place during the struggle, but that he woke up with the revolver in his hand.
The Court: You claim some emotional condition?
Mr. Clarke: Emotional insanity; yes, sir.
The Court: Emotional insanity.
There is no evidence to support this defense of complete lapse of memory and consciousness, except the defendant’s improbable testimony to the effect that up to the moment the fatal shots were fired he remembered everything in detail and everything that occurred after they were fired, but has no recollection of firing them. A person is. not excused from a criminal act, except upon proof that at the time of committing the act he was laboring under such a defect of reason as not to know the nature or quality of the act he was doing, or not to know that the act was wrong. G. S. 1904, § 6303. The instructions of the learned trial judge to the jury were exceptionally clear, full, and fair, and of them the defendant makes no complaint. They were quite as favorable to him as the evidence warranted.
It is not our purpose to discuss the evidence, except to indicate that any claim that the boy’s death was the result of an accidental shot occasioned by the alleged struggle between the defendant and the mother, or that she killed the boy, is simply unthinkable. The wounds in the boy’s head and neck conclusively show that they could not have been accidental. On the contrary, they indicate that they were made with deliberation and that the person who fired them was not satisfied by firing once, but repeated the act with the revolver held near the boy’s head. That there could have been two accidental shots from the same revolver, held by either the defendant or the mother, while they were standing and she was struggling with him, as the defendant claims, and that both shots could have wounded the boy, lying in his bed, as he was in fact wounded, is too improbable for belief by the most credulous. Again, the defendant’s own testimony negatives any suggestion that the mother might have shot her boy; for the defendant [361]*361claims that he was in the same bed with the boy, but could not sleep by reason of the noise the mother made; so he got up, dressed,, and it was not until he got to the door near the head of the boy’s bed that she rushed in and seized the defendant, when he immediately lost all consciousness of what was going on until he found himself in her room with the smoking revolver in his hand, or, in other words, he-had a clear conception of every thing which occurred up to the time he was seized by the mother, and from a time before the smoke from the revolver had cleared, but from the time he was seized until the revolver was discharged he was unconscious. Any suggestion that the mother left the defendant after he became, as he claims, unconscious, and shot the boy herself, and then forced the revolver. into the hands of the defendant, is absurd. If the shots that killed the boy were not accidental, as clearly they were not, then it follows that the mother did not fire them. There were but three persons present when they were fired — the defendant, the mother, and the boy. The boy could not have fired them, for his wounds show that they could not have been self-inflicted, and the mother did not fire them. Who did? The undisputed facts and the evidence in this case so unerringly point to the guilt of the defendant of the crime of which he was convicted that any verdict other than the one returned by the jury would have been an impeachment of their intelligence and a reproach to the administration of justice.
This brings us to a consideration of the alleged errors relied upon by the defendant as the basis for a new trial.
1. The defendant, when under examination as a witness, was asked by his counsel how Mrs. Keller (the mother) appeared with reference to being under the influence of liquor. The trial court sustained an objection to the question, but permitted him to state all that he had noticed as to her action and condition. Another witness, called by the defendant, and who saw Mrs. Keller about four o’clock in the afternoon of the day of the homicide, was asked by the defendant’s counsel if she saw Mrs. Keller drink any beer at that time. The court sustained an objection to the question. It is obvious that there was no error in either of the rulings. As to the first one, the defendant was given the opportunity to state all he had seen or observed in the actions or conduct of Mrs. Keller which would indicate that she was intoxicated, [362]*362if such fact were material; as to the second one, the question related to a time too remote to make the answer, in any event, of any value.
Another witness, who saw the defendant at the police station at about two o’clock the next morning after the shooting occurred, was asked by defendant’s counsel how he appeared at that time as to being sober or otherwise and able to understand what was said to him. The court sustained an objection to the question on the ground that it was incompetent and immaterial. The question was apparently immaterial, and no statement or offer was made by counsel indicating the materiality of the evidence. It is, however, here claimed in the brief of counsel that the evidence was material as tending to show that the defendant was not responsible at the time Dr. Moore had the conversation with him. The ruling of the court was correct.
Another witness, a physician and surgeon called by the defendant was asked in effect to give an opinion, based upon the nature of the wounds inflicted upon the boy, as to how far the revolver was from his head when it was discharged, and whether it was upside down when it was fired. The court sustained the objections of the state to the questions, to the effect that they were incompetent and immaterial. We find no error in the ruling.
2. The statement or exclamation of Mrs. Keller to Mrs. Kline to which we have referred was received over the objections of the defendant, and the ruling is here assigned as error. It is the contention of the defendant that the statement in question was simply the narration of a past transaction and not so connected with the main fact, the shooting, as to illustrate its character. On the other hand, the state claims that the evidence was clearly admissible as a part of the res gestae. We are of the opinion that the evidence was properly received. The record shows that Mrs. Keller was one of the victims of the tragedy; that her statement or declaration to Mrs. Kline was made within a few minutes after the shooting took place. It was not mere self-serving, hearsay evidence; for the statement was a natural and instinctive declaration, made in close connection with the shooting and •under circumstances precluding any suspicion of fabrication. The evidence was admissible as a part of the res gestae. The decisions of this court fully sustain this conclusion. O’Connor v. Chicago, M. & St. [363]*363P. Ry. Co., 27 Minn. 166, 6 N. W. 481; State v. Horan, 32 Minn. 394, 20 N. W. 905.
3. The trial court permitted the jury to separate after proper admonition during the recesses of the court before the final submission of the cause. This action of the court is here urged as error entitling the defendant to a new trial. Whether the jury in a capital case should be permitted to separate during the trial and before the final submission of the case is a matter within the sound discretion of the trial court. Bilansky v. State, 3 Minn. 313 (427); State v. Ryan, 13 Minn. 343 (378). The trial court did not abuse its discretion in permitting the jury to separate in this case. It must be admitted, however, that times and conditions have materially changed since the Bilansky case was decided, and we are inclined to believe that in capital cases, if the trial court has any doubts as to the propriety of permitting the jury to separate during the trial, it would be wise to keep them together, especially in the large cities of the state.
4. The last ground upon which the defendant’s motion for a new trial was based is the alleged misconduct on the part of some of the jurors in reading two certain newspaper articles referring to the defendant and his trial. The first one complained of was published on May 15, which was after the trial commenced, but before the impaneling of the jury was completed. The affidavit of one of the jurors was to the effect that a newspaper containing the first article was read by him and other jurors on the day of its publication; but it appears from the record that he was not summoned as a juror until the next day, when he was accepted as an impartial juror. The other article was published on May 18, during the progress of the trial, and referred to a passionate outburst of the defendant in reply to a question put to him when on the witness stand by the county attorney. The article, in so far as it referred to the character of the question and the testimony leading up to the outburst, was a fair report of what took place; but in its comments upon the manner and appearance of the defendant it was unfair, and showed a bias against the defendant. It fairly appears from the affidavits that some of the jurors read the article. It is to be noted that the article did not purport to state or refer to any matter occurring outside of the courtroom, that it correctly stated the evidence, and that the comments related to matters occurring in [364]*364die presence of the jury, who were in a position to verify them. We are not, however, disposed to attempt any defense of the article, and direct our attention to the question whether it appears from the record that the defendant could not have been prejudiced thereby. The alleged misconduct of the jurors in reading the article was an irregularity occurring at the trial, but it does not necessarily follow that the defendant is entitled to a new trial; for, if there be no doubt of the guilt of a defendant in a criminal case, alleged errors, not affecting his substantial or constitutional rights, should not be held to be reversible error on appeal. State v. Nelson, 91 Minn. 143, 97 N. W. 652; State v. Crawford, supra, page 95.
This does not mean, and the court had no intention of holding in either of the cases cited, that an appellate court may assume the functions of the jury, or, if it concludes from the evidence that the defendant is guilty, it may say that, no matter what errors were committed, the defendant is guilty anyway, and his conviction must be affirmed. The rule is that if substantial error is committed on the trial of a defendant in a criminal case, the natural tendency of which is to prejudice the defendant, it will be a ground for a new trial, unless it appears that the jury could not have been prejudiced thereby; but if it affirmatively appears, from the whole record, that the defendant could not have been prejudiced by the error, it is not a ground for á new trial. It would be trifling with justice to grant a new trial under such circumstances. Now, applying the test to this case, it affirmatively appears, as already stated, from the evidence in this case, that the jury could not have returned honestly or intelligently any other verdict than the one they did return. Nor can we intelligently assume that they would have returned a false verdict, if some of them had not read the articles in question. Therefore we hold th'at the reading of the newspaper articles in question by the'jury was not prejudicial error.
There being no reversible error in the record, the order appealed from must be affirmed. So ordered, and that the sentence be executed.