With respect to my position on which comment is made in the dissenting opinion, I have, at all times, conceded that error was committed in admitting the first dying declaration in the manner in which it was admitted, but felt that the defendant's substantial rights were not thereby affected and, therefore, the judgment should not be reversed. (Sec. 12125, Rev. Codes 1921.) I have not receded from that position but I feel that this court is placed in an indefensible position by first admitting that a majority of its members are convinced that the defendant did not have a fair trial and are agreed that a new trial should have been granted under subdivision 5 of section 12048, and then refusing to reverse the order denying a new trial because those *Page 591 members cannot unite on the reason why a new trial should have been granted.
The writer of the original opinion is firmly convinced that the court erred in instructing the jury on second degree murder and contended that such instruction gave the jury the opportunity to compromise on a verdict when the defendant was entitled to a verdict of acquittal unless the jury believed him guilty of murder in the first degree, yet joined the minority holding contrary to his express conviction in order to form a majority for the affirmance of the judgment condemning the defendant to serve a twenty-five year sentence. He justifies his action by reliance upon the rule announced in a civil action which, at most, affects property rights.
After a careful consideration of the question presented on the motion for a rehearing I am firmly convinced that, whether or not such a rule is based on sound reason in an applicable case, it should not be applied in a criminal case wherein the defendant's liability to punishment must appear beyond a reasonable doubt, and a majority of this court are more than in doubt as to whether or not his constitutional right to a fair trial has been denied.
I believe that each of the majority members should have applied the rule that "a wrong reason for a decision does not invalidate it" (Ebaugh v. Burns, 65 Mont. 15, 210 P. 892) to the decision of the other and thus become the actual majority without yielding the honest conviction of any one of them to a mere rule of procedure. As the writer of the original opinion cannot bring himself to do so, I concur in the conclusion expressed by the Chief Justice in order to prevent the establishment of what I consider a monstrous precedent. *Page 592