¶1Not wishing this cause to be transferred to court in lane, is the reason which deters me from dissenting. Nevertheless, I deem it proper to say why the opinion of the court does not meet with my entire concurrence.
¶2Section 4208, Revised Statutes, 1889, so far as necessary to quote it, declares that: “The court must instruct the jury, in writing, upon all questions of law arising in the case, which are necessary for their information in giving their verdict; [and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial].” Of course, when the statute says “all questions of law,” it means all, not a fraction less.
¶3How do questions of law arise in a case? They arise upon the introduction of all facts in evidence which have any tendency to establish the innocence or the guilt of the accused. The good character of a defendant when on trial is a fact as much as any other, and often times becomes a potent factor in establishing his innocence, when but for such evidence the verdict would be otherwise. This court has frequently held that evidence of facts and evidence of character rest on *18the same basis, and that there is no legitimate distinction between them; that the one equally with the other is in every criminal trial to be weighed by they jury in determining the guilt or innocence of the accused. State v. McMurphy, 52 Mo. 251; State v. Alexander, 66 Mo. loc. cit. 161; State v. Swain, 68 Mo. loc. cit. 615; State v. McNally, 87 Mo. loc. cit. 659. And this is the prevalent view.
¶4Thus, in Rex v. Stannard, Patteson, J., observed: “I cannot in principle make any distinction between evidence of facts and, evidence of character; the latter is equally laid before the jury, as the former, as being relevant to the question of guilty or not guilty; the object of laying it before the jury is to induce them to believe, from the improbability, that a person of good character should have conducted himself as alleged; that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly evidence in the ease.” 7 C. & P. 673.
¶5Taleoubd, J., says: “It is a petitio principii to say that evidence as to character is entitled to weight only in doubtful cases, when really it is to make the case doubtful that such' evidence is offered. In some instances, in which guilt would otherwise be established beyond reasonable doubt, evidence of good character may justly produce an acquittal. In other cases it may be inoperative. But in all cases it is an item of proof to be considered by a jury.” Cited, Wharton on Criminal Evidence [9 Ed.], sec. 67.
¶6This view of the subject is well illustrated and expressed in Heine v. Com., 91 Pa. St. 145, where Gordon, J., said: “Furthermore, the learned judge of the court below committed an error in saying to the jury: ‘If a man is guilty, his previous good character has nothing to do with the case; but if you have doubt as to his guilt, then character steps in and aids in *19determining that doubt.’ The effect of this was to give the evidence of good character no weight whatever, for if the other testimony left in the minds of the jury a reasonable doubt of the defendant’s guilt, this of itself, without more, entitled him to an acquittal. Evidence of good character is not a mere maJce-w eight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may, of itself, by the creation of a reasonable doubt, produce an acquittal.”
¶7Over thirty years ago it was said by this court that, “the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circum•stances of the case.” State v. O’Connor, 31 Mo. 389.
¶8In State v. McNamara, 100 Mo. 100, cited in the majority opinion, it is freely admitted as the law of this state “that evidence of good character of a defendant in criminal cases is always to be considered by the jury in making up their verdict j” and “that evidence of good character is to be treated the same as any other evidence of fact in the case.”
¶9Taking these concessions, supported as they are 'both in this state and elsewhere, as shown by the •authorities cited, how is it possible to make any distinction when it comes to instruct the jury between evidence of facts and evidence of character? For, after all, it is only upon evidence of some sort that instructions can be given. Wherever evidence is admissible and is admitted, then instructions must be given upon it, or else it is manifest that the trial court is wanting in its statutory duty to “instruct the jury, etc., upon all questions of law,” etc., “which are necessary for their information in giving their verdict.” Who so bold as ‘to say that the jury need no instructions as to the effect *20of evidence of good character! Evidence of good character, as shown by all the authorities, is “positive evidence.” Evidence which combats, countervails and overthrows other evidence offered by the state, which of itself creates a reasonable doubt, is sufficient to work an acquittal, is certainly entitled to have an instruction, whether asked or not, bottomed upon it, and cannot be esteemed a ‘ ‘merely collateral matter, ” to be ignored and brushed aside at the pleasure of the trial court.
¶10As early as 1842, it was decided in Hardy v. State, 7 Mo. 609, that it was the duty of the court in a criminal trial, “to instruct the jury in all the law arising in the case.” There was no statute in this state at that time on the subject. In 1845, however, a law was enacted which declared: … “On the trial of the issue on any indictment, … the court may instruct the jury on any point of law arising in the cause.” Revised Statutes, 1845, p. 882, sec. 28; Revised Statutes, 1889, sec 4220. The word “may,” in this section, concerning, as it does, a matter of public interest, and being for the public good, means “shall.” Railroad v. Platte Go., 42 Mo. 171, and cases cited. This court paid no attention to this section, and seems to have been ignorant of its existence. Repeated decisions of this court have since announced the same doctrine as that announced in Hardy v. State, supra; State v. Matthews, 20 Mo. 55; State v. Schoenwald, 31 Mo. 147; State v. Jones, 61 Mo. 232.
¶11In State v. Stonum, 62 Mo. 596, where the defendant asked no instructions, this court held that the court should have given such as the law required, and that in such cases “juries should not he allowed to guess at the law.”
¶12In State v. Branstetter, 65 Mo. 149, decided in 1877, a similar ruling was made that it was the duty of the court to give the jury all proper instructions appli*21cable to the case made by the evidence, whether such instructions, or any, loere ashed by the defendant or not, and that this was the settled law of this state.
¶13Section 1908, Revised Statutes, 1879, which is the same as section 4208 supra, minus the brackets, was approved May 19, 1879.. State v. Kilgore, 70 Mo. 546, was tried at the June term, 1879, of the Audrain -circuit court. The opinion of this court was delivered in that case on February 2, 1880. In that case it was ruled, so far as needful to be mentioned here, that it was not necessary for the court, of its own motion, to instruct the jury that the testimony of an impeaching witness could only be received for the -purpose of impeachment, and could not be received as evidence against the accused, and that such points in evidence were merely “collateral matters,” as to which instructions, if desired, should be asked. But in that case, section 1908 was not noticed, and no attention paid to its mandatory provisions. So that that case cannot be regarded as authority based on the statute, nor, indeed, upon prior, nor upon subsequent, decisions, because in State v. Banks, 73 Mo. 592, it was ruled to be error for the trial court, though not requested, to fail “to give correct instructions covering the whole law arising on the facts.” A like ruling was made in State v. Palmer, 88 Mo. 568, neither of which eases was noticed in State v. Brooks, 92 Mo. 542, nor in State v. McNamara. These remarks bring me to another case cited to support the ruling of the majority.
¶14It will be observed that in quoting from section 4208 of our statute, I have included some words in brackets. These were added to section 1908, Revised Statutes, 1879, and the reason of their addition to that section 'was this: In 1887 the case of State v. Brooks, 92 Mo. 542, was decided at the April term, 1887, in which the .lower court not only erred generally, but failed to *22instruct the jury upon all questions of law, etc., and this court affirmed the judgment. In that ease I dissented, and in my dissenting opinion quoted section 1908, supra, which, though cited by defendant’s counsel, had not been noticed by the court. Then, on a motion for rehearing being filed, an opinion was delivered and the correctness of my position of the authoritative and mandatory force of the fourth clause of section 1908, supra, and the duty of the court thereunder was virtually conceded and was not denied, except upon the theory that that section was “borrowed from an Indiana statute,” and, therefore, it was ruled that, with that borrowing process adopted, decisions of that state were applicable which held under their statute that-instructions desired by a defendant in a criminal case should be asked, or else it was no error to fail to give them.
¶15This theory was well enough, and there was only one trouble about it, and that was, it had no facts to-support it, as I conclusively showed in a second dissenting opinion in reply to the opinion of the court on rehearing, in which I established that section 1908 was not “borrowed from an Indiana statute,” but from a Kansas statute, and that the Indiana statute, section 1823 contained this particular clause: “Sixth. If the prosecuting attorney, the defendant, or his counsel, desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party, or his attorney, ashing them, and delivered to the court before the commencement of the argument,” etc., etc. - That sixth clause shows very pointedly how foundationless is, the assumption on which the Brook’s case rests, and how fallacious is the claim, that it is entitled to any respect whatever as authority in construing section 1908.
¶16Moreover, in 1889, at the next session of the legis*23lature, after the decision in the Brook's case was promulged, the general assembly added to section 1908 the words I have placed in brackets. This addition to that section, considered in the light of the history of the Brooks case and the wide-spread attention it attracted; and considering how swiftly that addition followed upon the heels of that grossly erroneous decision, it may properly be regarded as a well merited legislative rebuke of a decision remarkable on the point mentioned, as well as upon many others.
¶17But it is unnecessary to pursue the subject further, since the recent decision in State v. Taylor, in which all I have heretofore contended for is conceded.