delivered the opinion of the court.
On thе morning of the 10th of April, 1925, a murder was done in the city of Butte in a rooming-house on West Mercury Street, known as the Grady block, kept by one Peter Pavicic, where white women and Chinamen roomed, and where China-men came “to buy drinks.” The record discloses that a Chinaman, alleged to be Louie Won, the defendant, was seen entering room 10, occupied by Dolly Druary, about midnight. About five minutes after 2 o’clock screams in room 10 brought theretо Elsie Brown and Helen Miller. The Druary woman was on the bed and the Chinaman was choking her. He hit her in the face and about the nose which caused blood to flow freely from nose and mouth. Helen Miller called for Pavicic, who came into the room and inquired: “What is the trouble?” to which the Chinaman replied: “None of your damned business.” This conversation followed: “Pavicic: Well, I am asking you in a nice way what is the trouble? The Chinaman: It is none of your damned business. Pavicic: Well, you know you cannot hit a woman in my house. The Chinaman: Well, she cheated me. Pavicic: You will have to leave my house because I won’t stand for you hitting a woman in my house. The Chinaman: I don’t have to leave your house. Pavicic: Well, you will have to leave.” Pavicic then took the China-man by the collar of the coat, led him to the stairway and said, “Now there is the door, get out and don’t ever come up these steps again.” The Chinaman started back to the room, but Pavicic again led him to the stairway and “gave him a *515 boost with Ms knee” wMeh accelerated the movement of the Chinaman down the stairway. There the Chinaman opened the door, and standing in the doorway said to Pavicic: “Come down here,” calling Pavicic an opprobrious name, to which Pavicic replied: “Well, there is no use me coming down there.” He turned and walked into the room. The China-man lingered an instant, saying: “Well, I will come back and get you,” employing the same ugly name. About three minutes later the same Chinaman, identified by Elsie Brown as Louie Won, the defendant, came up the stairs with a revolver in his right hand. Elsie Brown and Pavicic then were coming from room 10. The woman said to Pavicic: “For God’s sake, Pete, get back, he has a gun.” Pavicic ran to the head of the stairs and attempted to grab the gun, telling the woman to get back. Won shot three times, killing him instantly. Won then fired two shots at Miss Brown. She ran into the room, slammed the door and locked it. Won tried the door, knocked and then went away. Shortly after this Miss Brown saw Pavicic lying on the stairway in a pool of blood, with three wounds in the right side of his face and head, — one through his neck, one through his face, and one through his temple.
At the time of the homicide, testified Miss Brown, the Chinaman, Louie Won, who will be referred to as the defendant, “was dressed in a blue suit with a brown stripe; he had on a black velour hat and black oxfords.”
The defendant was apprehended in a coal-chute, or coal-bin, in the basement of a Chinese laundry on East Park Street, at 7 o’clock on the morning of the homicide. He then had on a light cap, very dirty, a green sweater, a jumper, two pairs of overalls, waist and bib, over a blue suit with a light-green stripe, according to one of the officers. The officers took the defendant to the jailer’s office in the city jaiL Some women were brought to the office, one of whom was Dolly Druary. In the presence and hearing of the defendant she *516 said: “There is the man that did the shooting,” and she pointed at the defendant. He did not say anything. From the city jail the officers took the defendant to the Grady block, where he was confrоnted with Elsie Brown and Clara Pavicic. There in the presence and hearing of the defendant and the officers, Elsie Brown said, “That is the man that shot Peter,” indicating the defendant. The defendant did not say anything. At that time, Miss Brown testified, the defendant had changed his appearance; since the homicide he had shaved off his mustache, and “he had on two pairs of overalls, an old green sweater, sleeveless, and two overall jumpers.” The trousers of the blue suit were underneath the two pairs of overalls. He had on the same shoes as at the time of the homicide. Later, on the same day, in the office of the county attorney, there were present the defendant, deputy county attorney Botering, deputy sheriff Duggan, John Downey, Elsie Brown, Helen Miller and Dolly Druary. At that time and place, in the presence and hearing of the defendant, each of the women said that Louie Won was the man who shot Peter Pavicic. The defendant maintained silence.
In November, 1925, the county attorney of Silver Bow county filed an information against the defendant, accusing him of the crime of murder of the first degree. The defendant was duly arraigned, filed a motion to set aside the information, which the court denied, and a demurrer which the court overruled. He then entered a plea of not guilty. The cause came on for trial November 30, 1925, and upon December 2, 1925, the jury found the defendant guilty of murder in the first degree and left the punishment to be fixed by the court. Thereafter the defendant moved for a new trial, which was denied, and the court pronounced judgment that the defendant be hanged by the neck until dead. The defendant has appealed from the judgment and from the order denying him. a new trial.
*517 At the trial tbe defendant testified through an interpreter. He stated that he was in a gambling-house at Park and Main Streets in Butte at about 1 o’clock- on the morning of the homicide, remained there from half an hour to an hour, and then entered, another gambling-house nearby, where he remained about forty-five minutes. After leaving the second gambling-house he went to the corner of Galena and Wyoming Streets, where he met three or four boys who would not let him pass, but frightened him and chased him. He then went tо the Chinese laundry, where he was arrested later, arriving there between 2:45 and 3 o’clock in the morning. When he entered the laundry, he said, he wore a pair of trousers and two pairs of overalls. He remained in the laundry rather than going home because the boys were after him. He had not slept that night before going to the laundry, and putting on a jacket he went into the coal-hole where there was some old bedding and fell asleep. He did not shave at any time that night and did not have a mustache at any time on the night of April 10th. He denied that he was at the Grady block at any time of the morning of April 10th after midnight, and denied that he had a gun at any time that night, and swore that he did not shoot Peter Pavicic. He further testified that he did not understand the English language and did not hear or understand anyone accuse him of being the man that did the shooting, or the man that shot Peter Pavicic. He came to the United States in 1916. Testimony was introduced in behalf of the defendant tending to prove an alibi.
At the time of the trial Dolly Druary was in Wallace, Idaho. The whereabouts of Helen Miller were unknown.
1. The information is challenged for the reason that it does not allege the manner or means by or with which the defendant is charged with having committed the crime of murder. The charging paragraph of the information is as follows: “That at the cоunty of Silver Bow, State of Montana, on or about the 10th day of April, A. D. .1925, and before the filing
*518
of this information, the said defendant did wilfully, unlawfully, feloniously, intentionally, deliberately and premeditatedly, with malice aforethought, kill and murder one Peter Pavicic, a human being.” Defendant’s point is without merit.
(State v. Hayes,
2. Counsel for defendant say the court erred in sustaining the challenge of the county attorney to the venireman Roe. It appears this gentleman had cоnscientious scruples against inflicting the death penalty, or at least his attitude with respect to the matter was uncertain. The court, it seems to us, exercised its discretion properly, but regardless of that the record shows that the defendant was tried by a jury of fair and impartial men and this is all he could demand.
(State
v.
Griebel,
Notwithstanding that the only question raised by the defendant concerning the selection of the jury with respect to Mr. Roe, fifty-three pages of the transcript are taken up with the proceedings of the court in selecting the jury. That part of the record concerning the competency of Mr. Roe embraces but two pages. Thus the record is padded to the extent of fifty-one pages. Trial courts should not permit counsel to include useless matter in a bill of exceptions.
3. Counsel for defendant earnestly insist that the- court committed error in admitting the tеstimony of Kelly and Duggan, deputy sheriffs, to the effect that at the city jail, at the Grady block, and at the coúnty attorney’s office, statements were made by third parties in the presence and hearing of the defendant after his arrest and while he was in custody, to the effect that the defendant was the man who shot Peter Pavicic and that the defendant made neither response nor comment thereupon.
Section 10531 of our 1921 Code provides that “evidence may be given upon a trial of the following facts”: Then follow *519 sixteen subdivisions; 2 and 3 are closely related: “2. The act, declaration, or omission of a party, as evidence against such party. 3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto.” Subdivision 2 is quoted here merely for its explanatory effect. Subdivision 3 is the one with which we are concerned.
Thе general rule is that where one on being accused of crime with full liberty to speak, remains silent, his failure to reply or deny is relevant as tending to show his guilt; and the accusatory or incriminating statement is admissible, not as evidence of the truth of the facts stated, but as tending to show accused’s admission by silence. (16 C. J. 631, with numerous supporting cases.) Silence is a circumstance, the effect of which is for the jury, and from it, in connection with other facts and circumstances, the jury may infer that accused is guilty.
(Commonwealth
v.
Aston,
Counsel for defendant contend, and cite high authority to sustain their position, that the rule admitting evidence of the character in question does not apply where the accused is held in custody under a criminal charge when the accusatory statement is made. We think, however, in view of our statute, the distinction is not warranted. Where an act is done or declaration mаde by a person in the presence and within the observation of the accused, the conduct of the accused in relation thereto, whether it be by word of mouth or other demonstration, or by silence, and whether or not the accused is under arrest, properly may be shown to the jury. (An exception may be the unequivocal denial of the accusation hy the accused:
People
v.
Teshara,
In
People
v.
Gordon,
The foregoing doctrine was recognized in
State
v.
Fisher,
To render the testimony admissible it must be shown either that the aсcused did in fact hear what was said or that he was in a position to hear. The question is one of fact unless it is shown positively that he was within hearing distance and there is no evidence that his hearing was impaired. (16 C. J. 632.) In the instant case the record shows that the statements were made in the presence and hearing of the defendant.
But a statement made in the presence and hearing of an accused is not admissible where the stаtement is in a lan
*521
guage which the accused does not understand.
(Territory
v.
Big Knot on Head,
Recognizing the rule stated in
Territory
v.
Big Knot on Head, supra,
as indubitably correct, the record in this case shows that when the evidence in question was proffered the court had before it ample testimony showing that the defendant understood the English language. All of the colloquy between the defendant and Pavicic just prior to the shooting was in evidence. The necessary foundation had been laid. It was for the court to determine the admissibility of the evidence when offerеd.
(State
v.
Kacar,
The situation is not changed by the fact that the defendant afterward took the stand and testified through an interpreter swearing that he did not understand the English language and did not know of what he was accused. That the defendant testified through an interpreter is of no importance, as an interpreter might well be used notwithstanding defendant’s ability to carry on a conversatiоn between himself and Pavicic and his' ability to understand the accusatory statements made by the women.
(People
v.
Ong Mon Foo,
Nor does it make any difference that it was not shown that the witnesses Helen Miller and Dolly Druary were not eye-witnesses to the shooting. "Whether they were or not the record does not disclose. The testimony was not offered to prove the defendant’s identity by the statements of Miller and *522 Druary, but for tbe purpose of tending to sliow the fact indirectly as in the nature of a tacit admission of the defendant by his conduct in failing to comment upon or reply tо the accusation. (Diamond v. State, supra.)
The rule does not extend-to statements made in one’s presence at a judicial proceeding or hearing. (16 C. J. 634;
Wilkins
v.
Stidger,
The defendant requested the following instruction: “You are instructed that an act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto may be given in evidence. Before any such may be considered by you as any еvidence against the defendant, you must find, from all the evidence in the case upon that phase of the case, that the defendant heard and understood the specific charge, if any, made against him, and that he heard it under circumstances not only permitting but calling on him for a denial, taking into consideration all the circumstances and the persons who were present.”
To and including the words “against him” the instruction is correсt. And had it been requested in that form, undoubtedly would have been given. The words following, “and that he heard it under circumstances not only permitting but calling on him for a denial, taking into consideration all the circumstances and the persons Who were present,” were taken
vehbatim
from section 122 of Underhill on Evidence, second edition, and doubtless were intended by the author merely as a general statement of the law. An examination of the cases cited in the text shows that not one employs the language used by Mr. Underhill, save
O’Hearn
v.
State,
There is nothing to indicate that the defendant was not at full liberty to reply to the accusаtory statements if he desired to do so. The statements were not made by the officers but by the women Brown, Miller and Druary. There is no intimation that defendant was intimidated in the slightest degree. On the contrary, there is nothing to indicate that he was not accorded every consideration which a prisoner is entitled to receive.
What is the intent and meaning of “under the circumstances * * * calling upon Mm for a denial?” Under what circumstances must one accused reply? What circumstances call upon, require, demand that he reply? What penalty must he pay if he does not? What inference is the jury entitled to draw from the faGt? To these queries the language fails to give any information. A man thus accused may maintain silence if he chooses to do so. And there are occasions when one under arrest, being interrogated by officers, would be foolish if he did not keep a сlose mouth. If he does maintain silence it is but a circumstance which the jury may consider with the other evidence bearing on the point. If he does not reply he merely takes the risk of having his silence, taken with other pertinent evidence, construed as a tacit admission against him. “His own action under the circumstances in which he is placed is the matter to be considered and weighed by the jury. The degree of credit due to such evidеnce or implied admissions is to be estimated by the jury, under the circumstances of each case.”
(People
v.
McCrea,
*524 The probative force of tbis kind of evidence is not great, and it is to be received with caution (16 C. J. 632), and the jury might well have been instructed accordingly but no such instruction was offered.
This court, speaking through Mr. Chief Justice Brantly, in
State
v.
Lucey,
The instruction, taken as a whole, is not correct and the court did not err in refusing to give it.
(State
v.
Gay,
About the close of the trial-the defendant asked that the jury be permitted to view the premises where the murder was committed, during the night-time, so that the jurors’ inspection might be under conditions approximately the same as they were at the time of the homicide. The court granted the request. When the court convened on the following morning counsel for the defendant stated that the condition and aspect of the premisеs had been changed materially since the commission of the homicide in that a brighter light had been installed at the head of the stairway by reason of which the jury “had obtained an erroneous view of the condition of the premises as they existed at the time the homicide was committed,” thus prejudicing the rights of the defendant. Counsel were permitted to show that the larger light had been installed since the homicide. The change was madе between November 27 and December 1, 1925. Counsel then asked that the jury be permitted to view the premises again and that the *525 court order tbe lighting conditions restored as they were on tbe nigbt of the homicide. The court refused to make the order, the judge remarking that the court did not have any control over the property nor the right to order the person in possession to make any changes there. This was not error. The inspеction made was at the request of the defendant and unless he knew the conditions there had remained unchanged he took the risk of finding an altered situation. If the person in charge (obviously one not connected in any way with the prosecution) had changed the conditions at the scene of the murder, no one was to blame.
Whether the court ‘shall order an inspection by the jury is a question of discretion which will not be reviewеd in the absence of a clear showing of error.
(Maloney
v.
King,
The other assignments of error preferred by counsel for defendant, while carefully examined, we do not deem worthy of a special consideration in this opinion. While in several instances the rulings of the court were somewhat technical no rеversible error appears.
It appears to us from the record, as undoubtedly it did to the jury upon the trial, that this defendant Louie Won, after committing an assault and battery upon a woman in room 10 in the Grady block, was by the master of the house, Pavicie, compelled to leave the place and that he did so with threats to return and “get” Pavicic, and that shortly he did return with murderous intent, which he carried to a finality. It was murder in the first degree. The defendant then changed his appearance and shortly after the murder concealed himself in a coal-bin underneath a Chinese laundry. He admits that he concealed himself there, and, too, at a time very shortly following the homicide, and the reason he gives for doing so was not believed by the jury; the jury would have been credulous *526 if it bad believed it. Nor was tbe jury impressed witb Ms attempted alibi.
The judgment and order are affirmed.
Affirmed.
Rehearing denied July 16, 1926.