(dissenting). — In so far as the majority of this court have entertained this appeal to review the ruling of the trial court in holding the information insufficient, I am in accord with them. But how far that has been done, and why it was done, I apprehend will be a perplexing problem tor reporter, annotator, practitioner, and judge, in view of the incongruity manifest in reviewing the information and condemn*541ing tlie ruling of the trial court thereon as erroneous, and yet prefacing such review with the observation that “although in fact and effect the district court did not arrest the judgment, and therefore did not destroy the information, and hence the information is not before us for review.” It seems to me bad enough for an appellate court to review and announce opinions upon matters not before us, but here must be something worse, if the court’s views are tenable, for it is not only affirmed that the matter reviewed is not before this court, but that the ruling reviewed never was made at all. Yet proceeding, the court enters upon a discussion of the virtue of the information, and appears to condemn as erroneous the ruling of the district court that the information was insufficient. But in closing, the appeal is dismissed, thereby again affirming in effect that this court has no jurisdiction thereof.
I cannot concur in such a treatment. The appeal presents two questions of law, on consideration of which the trial court vacated the verdict of the jury finding defendant guilty of murder in the second degree, both of which questions of law, in my opinion, are, by virtue of the provisions of the statute, brought within the jurisdiction of this court for review and determination by this appeal. The first question of law for review is the ruling of the trial court to the effect that the information is insufficient to support the verdict; and as to that ruling, it appears to me there can be no well-founded doubt that it is fully within the jurisdiction of this court to review, and ought to be authoritatively passed upon and a determination announced. Such review and determination on that point I have urged in the councils of this <ourt as proper, and that such determination could be made in a homogeneous treatment of the case, along with the holding of the majority, that the •other question of law which pertains strictly to the motion for new trial is not subject to review on this appeal.
Let us set clearly in view the conditions which gave rise to this appeal and the questions of law which appellant seeks to have reviewed and determined thereby.
Defendant was by information charged with the commission •of the crime of murder in Park county; has been twice tried •thereon, and upon the second trial was by the jury’s verdict *542found guilty of murder in the second degree. Thereupon motion for a new trial was made on behalf of defendant and granted by a court order as follows:
“In this case, although many errors are assigned, there are but two which I consider of sufficient importance to notice in passing upon what I consider the merits of the motion for new trial. I am satisfied that the case was fairly presented to the jury, that the evidence was sufficient to sustain the verdict, and that there was no error in the instruction of the evidence of the argument of counsel. The two objections which I have referred to as being worthy of notice are: 1. The objection to the sufficiency of the information; and, 2. The objection raised to the instruction given by the court, number ten (10). There are grave doubts in my mind as to the sufficiency of the information to support a verdict of murder in the second degree, ■and although I would not feel like granting a new trial upon this objection standing alone; still, when taken in connection with the instruction given by the court, number ten (10), already referred to, I am disposed to grant a new trial. Instruction number ten (10) takes away from the jury the consideration of whether or, not the defendant acted upon what he believed to be actual danger at the time, and estops the jury from considering the question as to whether the defendant really believed himself to be in danger, although he might afterwards turn out to be mistaken in such belief, and although the court gave a further instruction, number twenty-one (21), explaining that the dauger need not be real, but only apparent, still the court is unable to say that the jury might not have been misled as to this instruction. Therefore, for these two reasons, the motion for a new trial in this ease is sustained.”
Exceptions to this ruling of the court, both as to holding the information insufficient and in holding instruction No. 10 erroneous, was reservéd by the state. The instruction in question reads as follows:
10. “Before a person is justified in taking the life of his assailant the slayer must not only exhaust all other reasonable means within his power consistent with his own safety to prevent the homicide, but it must clearly appear that the party *543' slain not only had at the time the present ability as well as the intention to kill or seriously injure the slayer at the time, and that deceased was then and there in the act of carrying out this purpose, to wit: the intention to destroy the slayer or of inflicting upon him serious bodily injury, and even then it will not justify the slayer in the use of any more force than is actually necessary at the time to prevent the deceased from immediately carrying into effect such unlawful purpose. By this instruction the jury will understand that the right to take life is limited to the actual and present necessities then suddenly precipitated by the assailant under such circumstances as to place the life and person of the slayer in such peril as admit of no other reasonable alternative thau the killing of the assailant, and even then the slayer’s right to employ force against the assailant is limited to the force necessary to repel the violence then being offered, and to place himself beyond the reach of immediate danger. The law of self-defense will not allow the slayer to go beyond this limit, and although the attack may be violent, unwarranted, and felonious, and made with the apparent intent to kill, yet, whenever this danger is removed as by disarming the assailant or by overpowering him by the interference of others, then the right of the person assailed to use force ceases, and for the same good reason where the assailant retires from the conflict, or pauses in his advance or turns away before committing any violence, a person though violently attacked would not be justified in killing while his assailant was hesitating or pausing in his attack, or was retreating or plainly evincing a desire on his part to discontinue all further violence, and in this case, even though you may believe from the evidence beyond a reasonable doubt that the deceased was advancing to attack defendant just prior to the shooting; still, if you are further satisfied from the evidence beyond a reasonable doubt that before the fatal shot w'as fired deceased ceased the attack, or turned away, or in any manner plainly manifested his desire to avoid any further violence, or was attempting to escape from the defendant at the time the fatal shot was fired, then defendant had no occasion to take the life of deceased, and you will bring in your verdict of guilty”
*544Instruction No. 23, given along with No. 10, and referred to in the order of the court, is as follows:
23. “You are further instructed, as a matter of law, that, if a person believes, and has reasonable cause to believe, that another has sought him out for the purpose of hilling him, or doing him great bodily harm, and makes demonstrations manifesting an intention to commence such attack, then the person so threatened is not required to retreat, but he has a right to stand and defend himself, and pursue his adversary until he has secured himself from danger, and if in so doing it is necessary to kill his antagonist, the killing is excusable, on the grounds of self-defense.”
The ruling of the court touches two questions: the sufficiency of the information, and the sufficiency or correctness of said instruction. These are both purely questions of law. Whether the information is sufficient in law to charge defendant with the commission of said crime, is a question of law. And likewise an instruction stating the circumstances or conditions under which the law will justify homicide is purely a matter of law. Indeed, the statute defines those circumstances, or conditions, under the pressure of which the law will justify homicide. The fact as to whether such conditions existed or not, in a particular case under inquiry, is, of course, a question of fact for the jury to find. Therefore, it is seen that the two points upon which the court made its ruling, overturning the results of the trial, and, as the prosecuting officer construed it, also overturning the information, were purely questions of law. The state having reserved an exception to this ruling, appealed to this court, asking a review and determination of those important questions of law.
Respondent interposed a motion to dismiss this appeal on the ground that there is no law authorizing an appeal on the part of the state until after final judgment of acquittal is entered in the trial court, and this motion to dismiss the appeal is the subject of the present consideration; although the whole case was argued and submitted along with the motion to dismiss.
The consideration of this question may be premised with the observation, that according to a preponderance of American *545authority an appeal cannot be taken on the part .of the state in a criminal case without statutory provision therefor. Mr. Bishop summarizes his investigation of this question of criminal procedure in the following remarks:
“Bights of state to have proceedings reversed. In England writs of error, the practical object of which is generally to bring whatever appears of record under the review of a higher tribunal, seem to be allowable to the crown in criminal causes; but the courts of most of our states refuse them, and refuse the right of appeal to the state or commonwealth, except where expressly authorized by statute, as in some states they are. In Maryland the state may have a writ of error at common law to reverse a judgment given on demurrer in favor of a defendant. And in some other states questions of law may, without specific statutory direction, be reviewed by this proceeding, or by appeal, on prayer of the state. The question is not free from difficulty; but probably some judges have refused the writ to the state, from not distinguishing sufficiently between cases in which the rehearing would violate the constitution and cases in which the prosecuting power has the same inherent right to a rehearing as a plaintiff has in a civil suit.”
(1 Bishop’s Criminal Law, § 1024.)
We therefore go directly to the statute with the question to find whether provision has been made for such an appeal, and there find it provided, that: “ Appeals to the supreme court may be taken by the state in the following cases, and no other:
“ 1. Upon a judgment for the defendant in quashing or setting aside an indictment.
“2. Upon an order of the court arresting the judgment.
“ 3. Upon a question of law reserved by the state.” (Crim. Prac. Act, § 396.)
It is seen that the statute expressly provides for an appeal • by the state from the action of the trial court in quashing or Setting aside an indictment. Under the present law and practice in criminal cases, as re-formed by the constitution and statute, the information is equivalent to an indictment, and said provisions of statute apply thereto. The state’s attorney construed said order of the court as quashing or setting aside the information as insufficient to “support a verdict of murder in *546the second degree” of which defendant had been convicted; and points to the express provision of the statute providing for an appeal from such determination of the court. The only attempt to avoid the direct force of that statute is by mere argument, that the question of insufficiency of the' information was not before the trial court ou the motion for a new trial. It is true that -question is not strictly germane to the motion for new trial. (Crim. Prac. Act, § 354.) And for that reason alone this court appears to hold that what was actually done was not doue, simply because “the ruling was not one that was attentive to the practice, and it did not distinguish the nature of the matter which the court undertook to handle.” And so this court holds, agaiust all authority and reason too, as it seems to me, that when the trial court does indirectly something which would be reviewable on appeal, if done directly, the appeal and jurisdiction to review is cut off. The logical result of this is, that, as often as a trial occurs, the court may annul the result by holding the indictment or information insufficient, and if this is done on motion for new trial such ruling is not reviewable, and the appeal will be dismissed. But if the court should hold the indictmeut had on some motion which gave nice attention to the rules of practice this court then admits that in such case the statutory provision making such ruling reviewable on appeal would have its effect. That statute could, however, be set aside at any time by indirection or by creating a little confusion on the subject of practice. But is the learned trial court subject to the strictures thrown upon its rulings when viewed in the light of the statute? It is clear that the trial court followed the plain path of the law. When the motion for new trial was committed to the consideration of the trial court there was also raised the question of the sufficiency of the information to sustain the conviction. This was a question which can be raised at any time before judgment, and not only raised by motion, but the court, on its own motion, may consider that question. (Crim. Prac. Act, § 358.) But according to the language of the order of court above set forth, “objection” was raised “to the sufficiency of the information.” The court says, “the two objections which I have referred to as being worthy of notice are: 1. The ob*547jection to the sufficiency of the information” etc. The tendency of this language seems to me to indicate that “objection to the sufficiency of the information” was made. Nevertheless whether it was raised by counsel or considered by the court, on its own motion, there is the authority of statute for the practice.
Therefore, while that objection was not germane to the motion for new trial, it was before the court at the same time, and was ruled upon. The court ■ expressed “grave doubts as to the sufficiency of the information to support a verdict of murder in the second degree,” and on that ground, coupled with the criticism of an instruction, vacated the verdict, and granted a new trial. If the court groups together these matters directly placed within the province of its consideration at the time, and bases his action in vacating the verdict on the insufficiency of the information,” shall it be said that the court did not do what it plainly has done, simply because all the grounds of the order were not especially pertaining to the motion for new trial? And that no appeal lies to review the ruling which the statute plainly makes reviewable on appeal, because that ruling was made in connection with other considerations? The situation is, therefore, peculiar, considering that this court holds that no appeal lies, and declines to authoritatively determine whether the information is good or whether the criticisms of the court below respecting the same are well founded. Suppose that upon another trial the state should again convict defendant and motion be made to vacate the verdict and grant a new trial, and the court should grant the same, observing that he had once held the information insufficient and that ruling had not been reversed. Consistency alone might dictate such a ruling on the part of the trial court. Nor could any blame for this extraordinary result rest upon the prosecuting attorney, because he appealed and sought review of the order which determined the information insufficient. In refusing to entertain this appeal and review the ruling of the trial court, in so far as that ruling impugns the sufficiency of the information, it seems to me this court disregards the substance and effect of things, and proceeds upon mere verbal distinctions without substantial ground. And I am unable, to. find,. *548either in the argument of counsel in support of the motion to dismiss, or in the opinion of the majority of this court, any ground for refusing such review.
As to a review of the question of law involved in the ruling of the trial court, that instruction No. 10 delivered to the jury was erroneous, there is also provision of statute for .appeal therefrom found in the third subdivision of section 396, that the state may appeal “ upon questions of law reserved by the state.” This is the direct provision, and if given force would make such appeals available to review questions of law analogous to the method of bringing up questions of law by writ of error. But this court holds that an appeal cannot be taken to review such questions of law reserved by the state as provided in subdivision third of section 396 until there has been a judgment of acquittal; and, of course, the mischief of the “error of law” is irremediable. So that if on an error of law alone an order for new trial, or any other order, however vital to the proceeding, is granted over and over again, there can be no review until it has resulted in a judgment of acquittal. But that holding on this branch of the case has an implication of statute to support it, and the majority of this court, as it appears to me, have given this implication the effect of annulling the express provision allowing appeals “upon questions of law reserved by the state” in many cases of criminal prosecution; and the effect, in all cases, of adding to that provision the words, “after judgment of acquittal.” Both of these effects of the ruling of this court stand directly in contradiction of the rules of construction of statutes. For instead of making the express provision of the statute yield to the mere implication, or “sacrificing the spirit to the letter,” the contrary is the rule of construction; and likewise the rules of construction forbid an interpretation which in effect adds or inserts into the statute any words or provisions. (Code Civ. Proa, sec. 630.)
Such construction of the statute is not only forbidden by sound rules of interpretation, but, it seems to me, a moment’s reflection and consideration of those provisions of the statute standing in pari materia would lead to a different view.
The holding of tlie majority is, that no appeal lies on the part of the stale until there is a judgment of acquittal; and *549lienee there is no appeal as provided by statute “upon questions of law reserved by the state,” if that error was given effect in an intermediate order overturning a conviction until the result is an absolute acquittal. Such is the effect of the observations in Territory v. Laun, quoted in the majority opinion, but acknowledged to be obiter dictum; and on that dictum, and the implication of the provisions of the statute following section 396, the holding of this court is based.
Now, with all due respect to the obiter dictum referred to, and also being mindful of the implication found in certain sections of the statute providing the manner of taking appeals, we cannot escape the fact, that the statute directly and expressly contradicts that dictum by providing for an appeal from an intermediate order where there is not, and, in the very nature of the case, cannot be, a judgment of acquittal. The statute provides for an appeal by the state “ upon an order of the court arresting the judgment.” (2 subd., § 396.) This is an intermediate order before there is any judgment, much less a judgment of acquittal. How then can this court quote and follow the dictum of Territory v. Laun, 8 Mont. 324, “ that in order that the territory can have this appeal considered, it must show that the appeal is prosecuted from a judgment?” Or how can this court hold, on the mere implication of the subsequent sections of the statute, that the appeal must always be accompanied by a judgment? Does not that holding contradict the plain intent, and not only so, the positive and express provision of the statute so plainly declared, that there is no room for interpretation? The legislature has said, by direct provision, there shall be an appeal by the state from an order refusing to enter judgment, but this court says that the appeal must be prosecuted from a judgment in all cases. And a logical following of that construction will deny an appeal from “ an order arresting the judgment.” For if an appeal is entertained from an order arresting a judgment, such appeal will not be “ from the judgment ”; nor by service of notice of appeal upon the clerk of the court “ where the judgment is entered ”; nor will it affect or stay the “ operation of the judgment,” because when an appeal is taken from an order arresting judgment, no judgment will have been entered in contem*550plation of law. And so all the implications and dicta which the majority opinion has drawn together to support this dismissal will apply just as forcibly to dismiss an appeal from an order in arrest of judgment; and thus annul also the express provision of subdivision two of section 396, that the state may appeal from an order of the court arresting the judgment.
I do not find any support for the ruling of this court in denying a review of the order of the court below, in so far as it impugns the sufficiency of the information. Nor do I find sufficient strength in the dicta and implications pointed out to overthrow the direct, positive provisions of the statute authorizing an appeal “upon questions of law reserved by the state.”
The framers of the statute undoubtedly intended that questions of law reserved by exception should be reviewed on appeal as upon writ of error, which was a well-known practice for review of errors of law. And that practice was undoubtedly in the mind of the framers of the provision that the state may appeal “upon errors of law reserved by the state,” found in the third subdivision of section 396, and viewed in the light of such analogy, it is without difficulty. The intention of the legislature in that provision is demonstrated by the history of the rulings of courts upon this point of criminal procedure. That ruling has been quite uniform in American jurisprudence that no exception, or appeal, or review by writ of error, was allowable on behalf of the state without express provision of statute therefor. Hence, the legislature provided in the criminal practice act for review of “a judgment quashing or setting aside an indictment”; “an order of court arresting the judgment,” and of “questions of law reserved by the state.” This statute is refused effect, because the legislature did not provide an appeal from an order granting a new trial. It seems to me the observation that “if our legislature had intended that an exception could be taken to such an order (an order for new trial) such order would have been made appealable,” manifests an entire misapprehension of the meaning and intent of the legislative provision. I think there is no doubt that if the framers of that statute had intended to provide for an appeal from an order granting a new trial provision would have been made to that effect. But it is manifest that the legislature did *551not so intend. New trials are frequently granted on discretionary considerations, and it is clear, from section 340 of the Criminal Practice Act, that it was not the policy of the legislature, in its wisdom, to make matters of discretion resolved in favor of the prisoner by the trial court reviewable on appeal by the state. Hence the legislature did not provide that an order granting a new trial to the prisoner should be appealable, because such provision would put upon review all the grounds of the order. Of course under the usual rules of appellate review, discretionary rulings are allowed to stand unless abuse is plainly shown. The legislature, however, left that responsibility entirely with the trial court. But to the end that the lata might be administered, and administered uniformly throughout the state, the legislature provided for review of questions of law ruled upon by the trial court against the prosecution. And these ought to be reviewed and determined even if another trial was granted on discretionary grounds, so that errors of law might not intrude their influence into the case until possible miscarriage of justice is wrought thereby. In my humble opinion the manifest wisdom and intention of the legislature is set aside in the holding of the majority, in refusing to review and determine the questions of law brought here for review by this appeal.