¶1(dissenting).
¶2I regret that I am unable to give my assent to the conclusion reached by a majority of the court in this case. My dissent is based solely upon the proposition that instructions numbered 15 and 16, relative to the legal presumption as to statements made by the defendant against himself, were not prejudicial. I agree that the instructions, in the respect mentioned, were erroneous, and that under different circumstances they might have been highly prejudicial; but I can perceive no reasonable ground for holding, upon the record in the case at bar, that the defendant was in any degree prejudiced thereby, or that he was, in effect, denied as to any material fact in the case the right to a jury trial by reason of the giving of such instructions.
¶3The only statement of the defendant which could be’ affected by the instructions referred to was that he was there, or “was in on the play,” which was made, if at all, when he was suddenly and unexpectedly confronted in the sheriff’s office by the alleged accomplice, Burney, and with the latter’s accusation that the defendant was the person who had killed the “old man.” It was left to the jury to determine whether the defendant’s statement so made had reference to the homicide charged in this case, or whether he made, the statement at all or not, since those questions were not taken from the jury by the instructions complained ■of or any other instruction given in the cause.
¶4Assuming that the jury may have found the statement to have been made, and that it had reference to the homi*69cide in question, and they were warranted in so finding, it stood out in the evidenec as a statement of a fact not only undisputed by any testimony in the case, but consistent with all the other facts and circumstances shown by the evidence. . It was of course the technical right of the jury to pass upon the truth of the statement itself, and to say that they would either believe or disbelieve it; and in practically eliminating the question of its weight from their consideration, by the instruction that it was presumed to be true, the trial court erred. But I do not think that such error amounted to a denial of the right of jury trial in legal effect or otherwise. Nor in my opinion must such an error be regarded as necessarily prejudicial. -Whether such an instruction is prejudicial or not must depend, as it seems to me, upon the facts and evidence in the case as disclosed by the record.
¶5Taking the statement as made, and as admitting the defendant’s presence at the time and place of the homicide, ór his connection with it to the extent mentioned in the statement, as it is related by'one or more of the witnesses, the fact so stated was not contradicted by any testimony, nor is it improbable, nor inconsistent with any other circumstance brought out in the evidence. Burney testified that the defendant was not only present when the homicide was committed, but that he actively participated in its commission, and the other facts are consistent with that testimony, though their tendency for the purpose of corroboration is perhaps slight. I cannot conceive, therefore', of any reasonable ground upon which the jury could have been persuaded to disbelieve the-undisputed statement aforesaid of the defendant; and I am not convinced that this appellate court should assume that the jury would or might have found the defendant’s statement to be untrue, in disregard of the other uncontradicted evidence, and in the absence of any contradiction or attempted contradiction of the truth of the statement itself, merely because a jury has the legal, though not the moral, right to disregard all *70the evidence, or to disbelieve any and all the evidence submitted to them, whether there is a reasonable ground therefor or not. There are doubtless decisions of respectable courts seeming to sustain such a proposition; but unless brought within proper limitations the doctrine may lead to unreasonable if not absurd results. It occurs to me that to assume that the jury in the case at bar might have found that the defendant spoke falsely in making the statement attributed to him, which statement was neither improbable, nor contradictory of any other fact in the case, and stood undisputed, is to assume that they might have acted arbitrarily, without regard to their oaths, or the evidence in the case. This I am unwilling to do.
¶6In Bressler v. The People, 117 Ill., 422, Mr. Justice Schofield, delivering the opinion of the court, said: “It has often been said by this court, and its correctness is obvious, although it might never have been said, that whether, in a given case, there should be a reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied, as upon the abstract accuracy of the language of the instruction; and so, if it is apparent that the' language of the instruction, though inaccurate, yet, when applied to the evidence before the jury, it could not have misled the jury to believe that their duty was different from what it actually was, the inaccuracy can afford no reason for reversal.”
¶7In the case of Dent v. State, 65 S. W., 677, the appellant was charged and had been convicted with being an accessary to the crime of murder; and the Texas Court of Criminal Appeals declined to reverse for error in instructing the jury that certain record evidence was conclusive proof of the conviction and guilt of the principal instead of prima facie proof. The court said in the opinion: “But in view of the fact that appellant introduced no evidence, we are then confronted with the proposition as to whether the error of the court was calculated to injure the rights of *71appellant. We have searched in vain for a distinction between evidence that makes out a prima facie case that is uncontroverted and a charge to that effect, and a charge that says said evidence is conclusive. If the jury in this case had been told by the court that the records were prima facie evidence of the guilt of Isaacs (the principal), could there be any controversy over the fact that they would have concluded under the evidence before them that defendant was guilty? We think’ not. Then certainly, under the mathematical aphorism that ‘things that are equal to the same thing are equal to each other/ we think it can be accurately stated that this charge was not calculated to injure the rights of appellant.”
¶8The charge in the Missouri case of State v. Hudspeth, referred to in the opinion of the court in this case, was not the same as in the case at bar. There the charge complained of was that if the jury believe any statements of the defendant have been proven by the State, and not denied by defendant, they are taken as true. The distinction I think is apparent. That instruction made it incumbent upon the defendant to personally deny the statements attributed to him; and other proof tending to show their falsity would not be sufficient; and it would seem that the defendant would be required under that instruction to personally deny making the statements, or the fact that he made them could not be disputed, or disbelieved, however improbable or inconsistent with the other evidence, the fact might be. That the Missouri court did not regard the instruction considered in the Hudspeth case as upon the same footing with the instructions in the case now before us is apparent from the absence in the opinion of any reference to the several previous cases in the same court refusing to reverse for the giving of the identical instructions here complained of. I shall briefly refer to a few of them.
¶9In State v. Van Sant, 80 Mo., 67, though the case was reversed on other grounds, an instruction like that in .the case at bar was held to be unobjectionable. In State v. *72Talbott, 73 Mo., 347, the same instruction was upheld, and a conviction for murder in the first degree sustained. In that case the court said, in reference to this instruction: “The fifth instruction is not a comment on parts of the evidence, hut a proper enunciation of the law in relation to statements made by defendants as has been repeatedly held by this court,” citing State v. Hallenscheit, 61 Mo., 302; State v. Hays, 23 Mo., 287; State v. West, 69 Mo., 401; State v. Curtis, 70 Mo., 594. The same instruction was again sanctioned in State v. Peak, 85 Mo., 190. It is hardly conceivable that these cases were overlooked in deciding the Hudspeth case; on the contrary, in the absence of reference to them in the opinion in that case, it would appear more likely that they were regarded as pot involving a similar proposition. Moreover, the character of defendant’s admissions in the Hudspeth case, and whether controverted in any manner or not is not disclosed. In the more recent case of State v. Coleman, 186 Mo., 151, an instruction that what the proof may show, if anything, that the defendant has said against himself, the law presumes to be true because said against himself, was apparently conceded to be erroneous; but the court refused to reverse on that ground for the reason that, as there was no evidence of any such statements, the error was not prejudicial. I quote the following from the opinion in that case covering the said instruction:
¶10“Conceding that there was no evidence upon which to base the instruction, we are not inclined to think the judgment should be reversed on that ground. Certainly this could not be done unless the error was prejudicial to defendant, and while the presumption is that an error made against a defendant when on trial for crime is prejudicial, this presumption may be overcome by the facts and circumstances in evidence if sufficient, and we can but conclude from the facts disclosed by the record that the error was not prejudicial. In fact, we are unable to see in what way defendant was prejudiced, and we are of the opinion that he was not; hence the error was not prejudicial.”