concurring:
I concur in the judgment and in the law of this case as stated in the opinion of Justice Talbot. There are, however, some matters disclosed by the record which, in my judgment, are worthy of further consideration although not affecting the ultimate result of this appeal.
The counsel appointed to present this case upon appeal, *523while urging a number of points of alleged error, frankly admitted his doubt as to whether they could be considered upon the record because of the lack of proper objections and exceptions. It was argued that the attorney who defended the appellant at the trial was inexperienced and failed to object to certain evidence, the admission of which was strongly urged to be prejudicial to the defendant, and that in other particulars there was a failure to incorporate in the record proper objections and exceptions. It was urged that this court should, in view of the fact that this was a capital case, consider the points urged upon the argument upon appeal whether or not exception had been taken in the lower court. Had there been an objection interposed to certain of the evidence claimed to be most prejudicial to the defendant, doubtless the trial court would have ruled properly upon it, and, if it was in fact inadmissible, would have excluded it.
If the defendant had been the only one implicated in the killing of Nelson, it would be much easier to reach a satisfactory conclusion as to the measure of the defendant’s guilt. This case was prosecuted upon the theory that the homicide was committed in carrying out the crime of robbery. The state offered evidence tending to establish the fact that Nelson had in his saloon or upon his person on the night of the killing a sum of money ranging from $150 to $200. Whatever money Nelson had was taken, with the exception of a five-dollar bill and a few cents. When the defendant was arrested, there was no money found upon him other than the amount which could be accounted for as having been left from his monthly payment after deducting the bills which he is shown to have paid.
The state offered in evidence in rebuttal statements made by the defendant to a countryman of his shortly after the arrest.
In this statement the defendant said that Ochoa had treated; that the trouble which resulted in the death of Nelson grew out of a dispute over the change that was paid to Nelson by Ochoa; that Nelson started to use his *524gun, which was behind the bar; that Ochoa then stabbed him; that Stillwell started to get out of the saloon; that Ochoa started after him; that the defendant endeavored to stop Ochoa, but did not succeed in doing so. When the homicide was discovered, the following day, there was found upon the bar a glass of beer nearly full and a bottle of beer partly full, and a bottle containing a small quantity of Hostetter’s Bitters. On the floor near the door and bar was a heavy bar bottle containing some whisky and a glass lying near it. There was blood upon the top of the bar and also the imprint of bloody fingers of both hands " outlined very perfectly. ” There was also some blood upon the standing board behind the bar and some broken bottles at that point. So much of the statement which the defendant made shortly after his arrest, as to the point at which the stabbing of Nelson occurred, appears to be borne out by physical facts.
A witness, who had charge of the property after the homicide, and who testified concerning the boards which covered the top of the bar, which were offered in evidence, testified that, for sanitary reasons, he had thoroughly scrubbed and cleaned the blood from off the top of the bar. The witness in his efforts at sanitary precautions destroyed what might have been one of the most valuable pieces of evidence in this case. Had the bloody finger-prints been preserved, it could doubtless have been established with certainty whether or not they were those of the defendant, and thus clearly have established whether or not the defendant or Ochoa was the actual assassin of Nelson. In the statement which the defendant made shortly following his arrest he accounted for his possession of the watch of Nelson by stating that Ochoa had given him his (Ochoa’s) coat, and the watch with it. If the coat which the defendant had on at the time of his arrest, and which he said was Ochoa’s, did not in fact belong to the latter, that fact could easily have been disproved, and we may safely take it for granted that that portion of his statement was true. The watch was of little value and was the only- thing *525found on the person of the defendant identified as belonging to Nelson. If Ochoa was the more guilty of the two, he may have had a motive in giving the watch to the defendant.
The witness Felip Gutierriz, who was also employed as a section hand upon the railroad, testified upon the part of the state that during the night of .the killing he heard voices and heard one person say: "Let’s get away from here. We have been in a fight in the saloon.”
If it were true, as stated by the defendant after his arrest, that the killing of Nelson was the result of a difficulty over the amount of change paid to Ochoa, then the larceny may have been an afterthought and carried out to aid Ochoa and the defendant in getting out of the country. This, of course, is speculative, and not to be considered as affecting the judgment. The jury was the exclusive judge of the weight to be given to the testimony, and it was its proper function to determine from all the circumstances established the guilt or innocence of the defendant. Had Ochoa been captured, much that is now doubtful as to the extent in which the defendant participated in the crime would possibly have been cleared up.
The testimony of the defendant given upon the trial doubtless did him more harm than good. It was unreasonable in some respects, and in conflict with his statements regarding the affair following his arrest. His statements made following his arrest, which were offered by the state, in which he admitted his presence at the killing, were more reasonable and more favorable to himself than his testimony given at the trial, which conflicted in material points therewith.
While recognizing it was within the province of the jury, not only to determine the credibility of the witnesses and the weight to be given to the evidence offered, but also, upon finding the defendant guilty of murder in the ■ first degree, to impose the death penalty instead of life imprisonment, nevertheless, after a very careful examination of the record, I cannot refrain from *526expressing the doubt that exists in my mind as to whether the ends of justice will be subserved by carrying out the. judgment of the court to the full letter.
In view of the youth of the defendant, his ignorance of the English language, the inexperience of his counsel, taken in connection with the fact that all the evidence was circumstantial, .and that there was' another participant in the crime, who escaped and who may have been the more guilty, I am impressed that the ends of justice would be subserved if the sentence of the defendant was commuted to life imprisonment. If the board of pardons should see fit to commute the sentence in this case, a result would be reached in consonance with what I believe would be a more just determination of the case. If precedent were needed for the position I have taken, the same may be found in the recent case of State v. Byrd (Mont.), 111 Pac. 407, 416.