I concur. Two juries have found the defendant guilty of murder in the first degree, have repudiated utterly his plea of self-defense. Upon the first appeal we determined that the evidence did not justify a verdict of murder in the first degree, nothing more.
If the district court had withdrawn from the jury's consideration murder in the first degree as, in view of our decision upon the first appeal, it should have done, there can be no question but that the jury would have found defendant guilty of murder in the second degree.
There were obscurities in the first record and there are in this. The manner in which defendant's leg was broken, and when it was broken, is a guess at best. That there was a struggle at the scene of the killing is undoubted. It was proved by the condition of the ground in front of and at the left of the Carney car, and by the manner in which O.J. Carney was beaten by the defendant, undoubtedly by the use of a heavy gun. The record does not indicate that the ground was much roughed at the point where Paul Carney was killed. As is said in Mr. Justice Ford's opinion, the record on this appeal differs from the first as to the physical facts shown at the scene of the tragedy. It differs in other particulars also. There was additional evidence, some of which strongly tends to discredit the defendant's story, which was highly suspicious in many particulars, to say the least. Moreover, by reason *Page 468 of the variableness of the human mind, the second trial of a case is certain to differ in some respects from the first. The manner in which this case was presented upon the second trial, with the addition of the new testimony, to my mind presents a stronger case than was presented upon the first trial, save only as to the degree of murder.
There is no substantial evidence showing premeditation and deliberation on the part of the defendant at any time. It is beyond belief that defendant started in pursuit of the Carneys two hours after they had left his place; but the record shows clearly that when defendant overtook them some lurid conversation took place, immediately following which, as two juries have found, the defendant was a fierce aggressor.
The jurors were entitled to weigh all the evidence; they were not bound to believe all of the testimony of any witness; they were at liberty to disbelieve all, a part, or none of the testimony of any witness, and to make up their minds on the whole case. (State v. Fisher, 23 Mont. 540, 59 P. 919.)
The evidence is ample to sustain a verdict of murder in the second degree. Why, then, send this case back for a third trial? There must be an end to litigation some time. No reversible error appears if we exercise the power granted us by section 12127, Revised Codes 1921. No better example of the reason for the enactment of that section is likely to appear than that which this case affords. In proper cases an exercise of the power granted will cut down expenses, relieve the courts of useless trials, and serve to promote speedy justice.