¶1If the defendant’s statement of what took place at the branch is true, then the killing was in self-defence after the •defendant had really and in good faith abandoned the pursuit ■of his victim. The jury’s misconduct in taking the de•ceased’s pistol and cartridges to the jury room and there experimenting with them apparently for the purpose of testing the truth of the defendant’s statement, was prejudicial to him. It was evidence taken by the jury out of court in the defendant’s absence which is prohibited by -the statute and contrary to the idea oí fair and orderly proceedings. The facts are proved by the bailiff who had the jury in charge. For the error in that behalf the judgment must be reversed.
¶2The testimony of D. D. Wortham, W. H. West and Mrs. J. T. Simpson and that of Jas. Fry, in so far as it related to the statements made by the defendant’s wife, had no tendency to prove the issue and should have been excluded from the consideration of the jury.
¶3The testimony of R. C. Bowden could become competent •only to rebut some theory developed by the evidence for the •defence: as, that the killing was done in a sudden heat of passion brought about by information of the wrong the deceased had done him.
¶4There is serious question as to the sufficiency of the 8th instruction to put the law of self-defence fully before the jury and give proper qualification to the 6th instruction.
¶5There was no error in the refusal of the court to give the :seven instructions asked by the defendant.
¶6Reverse the judgment and remand the cause for a new trial.