delivered tbe opinion of tbe court.
Tbe defendant, M. O. Howell, was convicted of murder of tbe first degree, and condemned to death.' Thereafter be moved for a new trial upon tbe grounds that tbe verdict was contrary to tbe evidence; that-tbe defendant-was prejudiced by certain •rulings of the-court, upon tbe admission and exclusion of evi-*4deuce; and that the court omitted to instruct the jury upon matter’s of law which arose in the case and were material to the defense. The 'defendant has appealed to this court from an order denying him a new trial, and submits the question whether the action of the court upon the first and second grounds of the motion was correct.
1. [We shall not undertake to state and analyze the evidence submitted at the trial. We have examined it carefully, however, and find that defendant’s contention that the verdict is contrary to the evidence cannot be sustained. While we find a substantial conflict in the statements of some of the witnesses, particularly as between those of the defendant himself and of certain of those introduced by the state, touching the circumstances of the homicide, the credibility and weight to be given to these conflicting statements was a question exclusively within the province of "the jury, and we have no' power to disturb their finding thereon. “This court cannot try the case d& novo, and thus invade the province of the trial court, by passing upon disputed questions of fact and the credibility of witnesses.” (State v. Hurst, 23 Mont. 484, 59 Pac. 911; State v. Allen, 23 Mont. 118, 57 Pac. 725.)
2. Counsel for defendant prepared and requested the court ■tb submit'to the jury two special instructions embodying the principle that in a criminal case the defendánt is presumed to be innocent until he is proven guilty, and that this presumption can be rebutted and’ overturned only by evidence establishing every element of the crime charged against him beyond a reasonable doubt. The court refused to submit these instructions ,on the ground that they were embodied, in substance, in the general charge given to the jury. Special instructions were also requested, in substance, that each juror should act upon his own judgment; that he should not surrender his deliberate, -conscientious convictions, unless he was convinced; and that, ■while he should discuss the evidence with his fellows in a spirit ■of fairness, being open toi conviction by reasonable argument upon '’consideration of all the evidence, under the law given by *5the court, he should not surrender his convictions merely because a majority were against him, in order to prevent a mistrial. These instructions were also refused. Counsel contends that the court was in error in both instances.
; The defendant in a criminal case is always entitled to have the jury tahe into consideration the presumption of innocence which the law throws about him. It is therefore the duty of the court to submit proper instructions upon this subject as a substantive part of the law. This presumption comes to the aid of the defendant at every stage of the case, and is finally rebutted and overturned only by evidence establishing every element of the crime charged to the satisfaction of the jury beyond a reasonable doubt. It does not therefore follow, however, that the trial court commits error in refusing to submit special instructions requested by the defendant, even though they were correct, provided the charge given fairly and clearly states the law applicable to the case, including the phases of it embodied in the special request.
The defendant in this case sought to justify the homieide on the ground of self-defense. The charge given by the court,' though very brief, was sufficient to meet every requirement. It clearly, defined and distinguished murder of the first and second degrees and manslaughter, calling special attention to the various elements necessary to constitute each offense. It also' gave the statutory definition of justifiable homicide, with a clear statement of the law of self-defense. The jury were then told that they must determine from the whole of the evidence whether the alleged homicide was murder of the first or second degree or manslaughter, or was justifiable on the ground of self-defense, and that they could not find the defendant guilty of any offense until they were convinced of his guilt beyond a reasonable doubt upon the whole of the evidence. They were' further instructed upon the law of reasonable doubt, and in this connection were told that the defendant was presumed tct be innocent until proven guilty beyond a reasonable doubt; that the burden was upon the state to establish beyond a reasonable *6doubt-every element of tbe crime charged; that if they found-the defendant guilty, of murder, or of manslaughter, in fixing the degree of his guilt they must give him the benefit of all reasonable doubt as between the greater or lesser offense, and find him guilty of the lesser; and they must acquit him entirely if from the whole of the evidence they had any reasonable doubt as to whether the hilling Was justifiable homicide. The court, having already correctly instructed the jury upon the subject of th¿ special'requests, was not required to repeat instructions already given, merely because they Were put in the form of separate paragraphs and specially requested. (State v. Bowser, 21 Mont. 133, 53 Pac. 179.)
Nor was.it error to refuse the instruction touching the duty, of the individual jurors, .although they embodied, a correct state-, ment of the law. The propriety of giving such an. instruction, was considered in State v. Hurst, supra. We adhere to the doctrine stated in that case. Of course, each juror must act upon his- own convictions.- He must not surrender them merely because- others of the jury have reached -a different conclusion-upon the evidence, though he may be aided by his fellow jurors-in arriving at the truth. ' If in this particular ease the court was in error in refusing to submit the instruction requested, it' must necessarily follow that a court should instruct the "jury as to their individual duties in all cases when requested, or else we must conclude that it was error in the court to refuse to submit the instruction requested in this case merely because counsel for defendant-was of the opinion that the jury required it. As was said in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5: “A jury need not be advised- of so pimple a proposition., The usual method of instructing upon the measure of proof required in criminal cases-is sufficient.” Furthermore,' each juror was sworn at the beginning of the trial to- well and truly, try the issue,- and a true verdict render according to the evidence. - - ■ >' .
*7The order of the district court denying a new trial was correct, and must be affirmed.
Affirmed.