delivered the opinion of the court.
Harry Robinson and Mrs. Pearl Belland were charged jointly with the murder of Matt Ulmer and were convicted of manslaughter. Thereafter Robinson was granted a new trial, but defendant Belland’s motion was denied and she appealed from the judgment and order.
Appellant relies for a reversal upon the refusal of the court to grant a new trial upon the following grounds: (1) Newly discovered evidence; (2) the giving of certain instructions requested by the state. She also predicates error upon the alleged misconduct of the prosecuting officers.
(1) To illustrate the first assignment, a brief review of the facts as disclosed upon the trial is necessary. The homicide occurred August 14, 1920, on the public road in front of the' Ulmer home, some thirty miles north of Havre, in Hill county. About 10:30 o’clock on the night of August 12, the deceased was observed lying in wait with a gun near his home, and, in reply to an inquiry as to his purpose, stated that he was in wait for the defendants and would “get them” if they came that way. This information was conveyed to the defendants on the following day and they then armed themselves with an automatic pistol. On the afternoon of the 13th' the defendants passed the Ulmer place, and Robinson upbraided Ulmer for his conduct the evening before, with the result that a war of words ensued during which invitations to fight were exchanged but without acceptance, and defendants went on their way. On the morning of the 14th the defendants in a farm *544wagon started for their respective homesteads upon a road which led by the Ulmer home. When they approached the Ulmer house they were hailed by Ulmer, who, applying a vile epithet to Robinson, invited him to get out of the wagon and fight. Robinson accepted the invitation and the two men came together, Robinson striking and Ulmer clinching. They fell to the ground with Ulmer on top, and immediately G-us Hinze, the former husband of Mrs. Belland, came from the Ulmer house with an empty quart beer bottle and struck Robinson over the head with it until the bottle broke, and then with the jagged edge of the bottle neck struck Robinson in the eye. Mrs. Belland called to Hinze that he could not kill Robinson and fired two shots at Hinze, neither of which took effect. Iiinze ran into .the house and secured a gun. Robinson and Ulmer were still fighting on the ground—Ulmer on top—but neither inflicting any injury upon the other.
To this point in the narrative there is not any substantial conflict. Hinze testified that' he did not hear a third shot or know what transpired while he was in the house, but that when he returned, Ulmer had been shot; that he pointed the gun toward Mrs. Belland and pulled the trigger but the gun proved to be unloaded; that he returned to the house, secured ammunition, and when he appeared again the defendants were in the act of leaving, and that they drove away rapidly. Solomon Jaber, who assumed to be an eye-witness to the tragedy, testified for the state that after Mrs. Belland fired the two shots at Hinze, she alighted from the wagon and, approaching within two or three feet of the two men on the ground, pointed the pistol at Ulmer and fired two more shots, one of which took effect and caused Ulmer’s death. Ulmer was shot through the body diagonally from the right shoulder blade, the bullet pursuing a slightly downward course.
This, in brief, is the case made by the state, and it will be observed at once that, without the testimony of Jaber, the person who fired the fatal shot would not be identified and neither would there be present anything to indicate the cir*545cumstanees under which the shot was fired; in other words, without the testimony of Jaber there would not be evidence sufficient to take the case to the jury.
The only other persons present were the two defendants. Mrs. Belland testified that when Hinze commenced beating Robinson on the head with the bottle she called to him that he could not kill the man, and, alighting from the wagon, shot at him twice, but missed; that Hinze ran into the house, secured a gun and shot at her once without effect but still kept the gun pointed at her; that Ulmer then arose from off of Robinson and came to where she was standing and tried to take the pistol from her or turn it upon her; that in the struggle over the possession of the gun, one of her hands was injured; that she called to Robinson for help; that Robinson came to her assistance, his head and face covered with blood; that he seized Ulmer by the shoulders and turned him partly around, and that then, with knowledge of the fact that Hinze still had her covered with his gun, and realizing Robinson’s weakened condition and her peril, and mindful of the threat made by Ulmer the evening previously and Hinze’s repeated threats to kill her and Robinson, she fired at Ulmer and he dropped to the ground; that she fired but three shots altogether and did not know that Ulmer had been killed until told later by his brother. Robinson testified substantially to the same facts, and in some details Mrs. Belland was corroborated by other witnesses. These defendants were present and knew what transpired. If their story is true, the case presented is one of justifiable homicide.
Without Jaber’s testimony the state could not make out a case. His story is indispensable to the conviction of either defendant, and it was therefore of the utmost consequence that he should have occupied a position from which he could see and know all that transpired after the two shots were fired at Hinze. Upon the trial Jaber testified that during the entire controversy, and until after the fatal shot was fired, he was standing in the road near the east end of Robinson’s *546wagon, and about twenty-five feet from where Robinson and Ulmer were fighting on- the ground; that his vision was unobstructed; that he saw everything that occurred; that he was not unduly excited and did not fear for his own safety.
In support of the motion for a new trial, there is presented the affidavit of George E. Herron, deputy sheriff of Hill county, to the effect that he was present at the Ulmer home on August 16 when the coroner’s inquest was held; that Jaber was the only witness examined at that time; that during the course of his examination, the coroner, the deputy county attorney who was conducting the examination, the affiant, the witness Jaber, and others, left the house in which the evidence was being taken and went out upon the road to the place where the trouble occurred; that Jaber there re-enacted his part as of the time of the tragedy; that he designated where he stood when the shooting commenced, as a point in the road a few feet south and east of the Robinson wagon, and stated that when the shooting began he ran for cover behind the wagon, placing a water barrel’ in the wagon between himself and the shooting, and then jumped over the fence along the south side of the road and was some six feet south of the fence when the shooting ceased; and that he was greatly excited and feared for his own safety.
In his affidavit, the coroner recites the fact that the several parties left the Ulmer house during the examination of Jaber and went upon the road; that Jaber told what happened during the shooting and illustrated where he was and what he did at that time; that affiant does not remember where Jaber said he was when the shooting was started, nor what he did immediately thereafter, except that he does remember that Jaber then and there said that he jumped over the wire fence on the south side of the road and that he was very much excited and afraid for his own safety. '
From other affidavits it is made to appear that after Jaber had concluded his exhibition and statements on the road, the parties returned to the Ulmer house where a slight correction *547was made in the testimony concerning certain distances; and the testimony was then closed without incorporating the statements which Jaber had made while out on the road. It is made to appear, further, that neither of the defendants knew that an inquest was to be held on August 16 and neither was present in person nor represented by counsel; that defendants and their counsel relied upon the coroner’s report as containing a full, true and correct statement of all the testimony given by Jaber at the inquest, and were not aware that he had told a different story until after the trial was concluded. There were not any counter-affidavits presented.
Confessedly, the purpose of this newly discovered evidence [1] is to impeach the witness Jaber, and for the purpose of introducing such evidence a new trial will not be granted as a rule, and the reason is apparent. If the moving party has had a fair hearing, with ample opportunity to prepare his case and fend against the possibility of perjury, he cannot reasonably demand more, and the smart of defeat and the certainty of the consequences offer too great a temptation for him to manufacture a plausible showing in support of his motion; but there are exceptions to the rule of which this court has taken cognizance.
In State v. Matkins, 45 Mont. 58, 121 Pac. 881, we announced the rules which govern generally the application for a new trial on the ground of newly discovered evidence. Among those rules are the following: The new evidence must not be cumulative merely, and it must not be such as will tend only to impeach the character or credit of a witness. Concerning the rules, this court said: “To some of these there may be, and doubtless are, exceptions. For illustration: The cumulative evidence may be so overwhelmingly convincing as to compel the conclusion that to sustain the verdict would be a gross injustice, or the impeaching evidence may demonstrate perjury in the witnesses upon whose evidence the verdict is founded.”
*548In 12 Cyc. 736, the same exception is stated as follows: “Where it is discovered after verdict that a witness for the prosecution deliberately perjured himself and the accused would not have been convicted except for his testimony, he is entitled to a new trial for newly discovered evidence.”
It is apparent that if these affidavits state the facts, a material portion of the, testimony given by Jaber at the inquest was suppressed, and if he told the truth at the inquest, he committed perjury at the trial. At best, his testimony as it appears from this record is unsatisfactory. He was impeached upon other matters, and, since he was the only witness for the state who assumed to know the circumstances immediately surrounding the killing, a conviction ought not to rest upon his testimony alone, viewed in the light of the facts disclosed by these affidavits. If upon a new trial the facts are developed as indicated by the affidavits, it is inconceivable that, a jury would believe the story told by Jaber upon the first trial.
Other so-called new evidence, material to the defense, is set forth in the affidavits, but the excuse tendered for not having made discovery of it before trial is insufficient.
(2) Although the deputy county attorney was not required [2] to participate in the inquest, he was present and conducted the examination of Jaber and must assume at least a part of the responsibility for the suppression of that portion of the evidence given by the witness while upon the road. Sections 9668 and 9669, Revised Codes, require that the testimony taken at a coroner’s inquest shall be reduced to writing and filed with the clerk of the court. These statutes do not confide to the officers the right to select such testimony only as will tend to establish the commission of the crime and omit evidence which has a contrary effect. If the entire story told by Jaber had been incorporated in his deposition, these defendants and their counsel could not have been misled to their prejudice, but would have been prepared to meet the testi*549mony given by the witness at the trial. Assuming that the deputy sheriff has stated the facts in his affidavit, the prosecutor was guilty of gross misconduct in omitting from Jaber’s deposition the testimony which disclosed that the witness was not in a position to see or know what transpired at the time the fatal shot was fired.
Likewise the repeated efforts of the county attorney to [3] get before the jury something that might indicate that these defendants were sustaining illicit relations, and his action in calling as a witness for the state, the wife of defendant Robinson, cannot be justified from any viewpoint. Since, however, a change has been effected in the personnel of the county attorney’s force, a repetition of these offenses will not likely occur, and we refrain from further comment.
(3) Instruction No. 5, given by the court, correctly defines manslaughter, and we are not prepared to say that it was inapplicable to the facts.
Instructions 7 and 8 state correctly abstract rules of law and are subject to criticism only in that they are not made applicable to the facts of the particular ease.
Instruction 19 should not have been given, as there is not any foundation for it in the evidence.
Since this cause must be remanded for a new trial, attention [4] is directed to Instruction 24, to which exception was not taken. It is essentially erroneous, and a like instruction has been condemned by this court so often that it seems inconceivable that the error could be repeated at this late day. Section 8928, Revised Codes, provides “that a witness false in one part of his testimony is to be distrusted in others.” No exception is made in favor of the testimony of such a witness corroborated by other credible evidence and the courts are without authority to write in such an exception.' (State v. Penna, 35 Mont. 535, 90 Pac. 787; State v. Connors, 37 Mont. 15, 94 Pac. 199; State v. Kanakaris, 54 Mont. 180, 169 Pac. 42.)
*550For the reasons assigned, the judgment and order are reversed and the cause is remanded to the district court of Hill county for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Associate Justices Reynolds and Cooper concur.