¶2The state again points to Mr. Dalrymple's evidence, especially his testimony that before he went upstairs to bed he forgot and left $95.00 to $100.00 in his billfold "on the shelf behind the stairway" and the next morning it was gone. He also testified that he left eight or ten dollars with Cecil for the purpose of making change and that Cecil had some money of his own. He said Cecil kept the station money in his overall pocket and his own money "in a billfold up here in his overcoat." In our principal opinion we pointed out the objections to and the weaknesses of all this evidence and indicated why we thought it insufficient to sustain the state's theory of its case. A re-examination of the record has not changed our views but there is one further circumstance strongly corroborative of what we have already said.
¶3The appellant's twenty-fourth assignment in his motion for a new trial is as follows: "Because the state offered testimony to the effect *136 that money was missing from the body of deceased (Curd) shortly after the homicide by witness Dalrymple, thereby implying that defendant had taken said money, when in truth and in fact said moneys had been taken from the body of deceased by the coroner of Clinton County and also by the undertaker, as appears from the affidavit of Dr. A.D. Templeman, Coroner, attached hereto. And said facts first came to the knowledge of defendant and his counsel after the verdict of the jury was rendered, although due diligence by defendant's counsel was exercised in attempting to learn these facts, which facts they did not at the time know."
¶4The attached affidavit of Dr. Templeman is as follows: "I, A.D. Templeman of lawful age and residing in Cameron, Clinton County, Mo. and after being first duly sworn on oath state, that I am a regularly licensed and practicing physician at Cameron, Mo.; that during the year 1939 I held the office of Coroner of said Clinton County, and that in the performance of my duties as Coroner I went to a point near Gower to a filling station, in response to a telephone call, and there viewed and examined the body of one Cecil Curd, who had been shot and killed. I took from a bib pocket [684] of his overalls (I believe from an inside pair of overalls) a pocketbook containing the sum of four and 45/100 dollars. Mr. Curd's brother, Paul, told me that the pocketbook belonged to his murdered brother, Cecil, so I gave Paul Curd the custody of the pocketbook and money, receiving a receipt for the same.
¶5At the undertaker's establishment, Lucis Daius, Dearborn, Mo., one dollar and forty-five cents was found scattered through several pockets of Cecil Curd's clothing and this money was also given to the custody of Paul Curd and a receipt was taken."
¶6We do not agree that Mr. Dalrymple's evidence is subject to all the constructions appellant's counsel attribute to it, neither do we indicate that the appellant was or was not entitled to a new trial because of newly discovered evidence but if the facts stated in the motion and affidavit with reference to the money are true, and there is every indication that they are, they are not only strongly corroborative of what we have already said in our principal opinion with respect to the sufficiency of the proof of a robbery but also indicate the availability of evidence as to what actually became of some of the money supposed to have been taken from Curd's person or presence.
¶7There is not the slightest evidence, either direct or circumstantial, of an attempt to commit a robbery of any degree — if the circumstances are permissive of any inference in the state's favor it is that Conway and his accomplice were engaged in the actual perpetration of a robbery as defined by Mo. R.S.A., Secs. 4450 and 4453, that is, robbery in the first degree. As we pointed out, the statute (4376) dispenses with proof of premeditation and deliberation and absolutely fixes the degree of the offense as murder in the first degree, permitting *137 the assessment of the extreme penalty of death. Considering and weighing all the evidence, with knowledge of the purpose and effect of the statute, it does not present that strong set of circumstances required to discharge the state's obligation of proving beyond a reasonable doubt every element of the offense and particularly that Conway was engaged in the perpetration of a robbery when he shot and murdered Curd.
¶8The motion for rehearing is overruled. Ellison and Tipton,JJ., concur; Leedy, J., dissents.