ON MOTION FOR REHEARING. The State has filed most exhaustive briefs in support of its motions for rehearing in this case and in the case of State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998, concurrently decided with this case.
It is urged that our opinion in each case, holding the giving of an instruction with reference to verbal statements made by defendants to be reversible error, is in conflict with prior decisions of Division Two of this court and with a decision by the court en banc. From the learned brief of the Attorney-General in the Dollarhide case we find that the seed from which instructions of this nature grew was planted into our Missouri practice in the case of Green v. State, 13 Mo. 382, l.c. 392, where the following instruction was approved:
"In receiving the declarations of the prisoner, the jury ought to take the whole of them into consideration, and may believe that part, which charges the prisoner, and reject that which is in his favor."
As tall oaks from little acorns grow, so lengthy instructions grew out of the short and concise instruction approved in the Green case. The instructions seem to have taken two definite forms. The one that was condemned in this and the Dollarhide case, which we will refer to as the modified form, is in substance as follows:
"The jury are instructed that any verbal statements of the defendant that have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. *Page 1014 What the evidence may show you, if anything, that the defendant has said against himself, is presumed to be true, because against himself; but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered in its relation to all the other facts and circumstances in the case."
Instructions in similar form were approved in a number of cases that will be discussed later in this opinion.
Another form of instruction, which has been more often given, is similar to the one found in State v. Knowles, 83 S.W. l.c. 1092, 185 Mo. 141, and reads as follows:
"The court instructs the jury that if you believe, from the evidence, that the defendant made any statements in relation to the crime charged against him, the jury must consider suchstatements all together. The defendant is entitled to the benefitof what he said for himself, if true; and the State is entitled to the benefit of anything he said against himself in any statements proven by the State. What the defendant said against himself the law presumes to be true, because said against himself; what the defendant said for himself the jury are not bound to believe, because it was said in statements proved by the State. But the jury may believe it or disbelieve it, as it is shown to be true or false by the evidence in this cause. It is for the jury to consider, under all the facts and circumstances, how much of the whole statements the jury deem worthy of belief."
The parts italicized are not contained in the form of the instruction above referred to as the modified form.
In searching the books for authority to sustain the giving of these instructions there is little to be found outside of this State. It is generally held that the giving of such an instruction is invading the province of the jury. In 1 Randall's Instructions To Juries, pages 87, 88 and 89 we read:
"As a general rule it is error to instruct, and proper to refuse to instruct, as to the weight and effect of the admissions of a party in a civil case, or of a defendant in a criminal prosecution, and instructions discrediting testimony as to the oral admissions of a party, or charging that it should be received with caution, or, on the other hand, that it constitutes satisfactory or strong or conclusive evidence, are erroneous, and properly refused. An instruction in a criminal case that the law presumes that what accused said against himself is true, while what he said for himself the jury are not bound to believe, is erroneous as on the weight of the evidence. In one jurisdiction, however, it is held that when, in a criminal prosecution, evidence introduced is entitled to less or more weight than ordinary evidence, such as extrajudicial statements of defendant tending to *Page 1015 establish his guilt, an instruction as to how such evidence must be weighed is proper as one on a point of law. . . ."
The one jurisdiction referred to as authorizing the instruction is Missouri. In 16 Corpus Juris, page 927, section 2287, it is said:
"After a confession is admitted, it is the province of the jury to pass upon its credibility and weight."
Many authorities are cited in support of the text in Randall's Instructions To Juries and Corpus Juris.
Our own court has also leveled some harsh criticisms against these instructions. Note what this court had to say in State v. Thomas, 250 Mo. 189, 157 S.W. l.c. 339:
"In the opinion of the writer there is grave doubt as to the propriety or necessity of trial courts giving any instruction attempting to define the weight to be given to oral admissions or confessions against interest. Such instructions violate the plain letter and spirit of Section 5244, Revised Statutes 1909, prohibiting courts from commenting upon evidence. We doubt if any citizen of Missouri was ever selected for jury service who was so grossly ignorant as not to understand that a statement against interest coming voluntarily from the mouth or pen of a litigant should be treated as true. We are aware of the long-established custom in this State of giving instructions defining the weight to be given to oral admissions against the interest of the party making same, and we would hesitate to reverse a case solely for an error of that character, but we believe trial courts should construe only legal documents and leave juries untrammeled in weighing oral evidence."
In the above case the court held erroneous and reversible error the giving of an instruction in the identical form as that given in this case. There was this difference in the evidence. A confession of defendant had been introduced in evidence, while in this case and the Dollarhide case evidence was introduced of verbal incriminating statements made by the defendants.
See, also, State v. Hudspeth, 51 S.W. l.c. 487, 150 Mo. 12, where this court in no uncertain terms condemned an instruction which read as follows:
"The court instructs the jury that if you believe any statements of the defendant have been proven by the State, and not denied by the defendant, they are taken as true."
The court in part said:
"By this instruction the court invaded the province of the jury, and decided for them the weight of the evidence and the credibility of the witnesses, whereas, under our Constitution and laws, it is the exclusive right and duty of the jury to pass upon the witnesses and the weight of testimony. If this instruction be law, then the jury may be required to accept that as truth which under their oaths they may believe to be falsehood. It was a maxim of the common law *Page 1016 `that with respect to the question of law the jury must not respond, but only the judges, and as to questions of fact the judges must not respond, but only the jury.' [Broom, Leg. Max. 80; Co. Litt. 295b.]"
The oldest case cited in the motion for rehearing that approved an instruction in a modified form, which omitted the elements that the jury must consider the statements of a defendant altogether and that the defendant is entitled to the benefit of what he said in his own behalf, if true, is State v. Sattley,131 Mo. 464, 33 S.W. 41. The instruction is not set out in the opinion. The Attorney-General has obtained the form from the files of the case. As pointed out in the original opinion, the instruction approved in the cases cited in support of the instruction in that case had in it the two elements mentioned. No consideration whatever was given to the instruction except to say it had been approved so often "that we must decline to enter upon its defense." As noted, the cases cited in support thereof do not approve an instruction as given in that case. [The same may be said of State v. Tobie, 42 S.W. l.c. 1079 (7), 141 Mo. 547, and State v. Hudspeth, 159 Mo. 178, 60 S.W. 136, and State v. Sharpless, 111 S.W. 69, 212 Mo. 176.] In State v. Cushenberry,157 Mo. 168, 56 S.W. 737, the instruction approved was not considered at all in the course of the opinion. In State v. Davis, 226 Mo. 493, 126 S.W. 470, the court contented itself by citing Green v. State, supra, and State v. Darrah, 152 Mo. 522, 54 S.W. 226. In the Darrah case the court en banc approved an instruction in the modified form. It cited the Sattley case and the cases cited in support of the Sattley decision. No consideration was given the particular objections made to the instruction in this case. It will be noted that all of the rulings in support of the instruction in the modified form are based upon the Sattley opinion. The Sattley opinion gave no consideration whatever to the question and cited cases that did not support its ruling.
Neither was the question of whether the instruction invaded the province of the jury ever considered in any of the above cases approving the instruction. Nor did the court consider the points in question in State v. Lewis, 323 Mo. 1070, 20 S.W.2d l.c. 537. It is there stated that the instruction was not a comment on the evidence in the case because it made no reference to the testimony of the defendant. It cites State v. Hayes, 262 S.W. l.c. 1036, paragraph 5, as an authority for approving the instruction. However, the instruction in the Hayes case contained both elements which are omitted from the instruction referred to as the modified form. There may be other cases but all that have been examined, approving an instruction in the modified form, found root in the Sattley opinion. The instruction in the modified form is vicious. It deserves all of the criticism contained in State v. Thomas, and State v. Hudspeth, 51 S.W. l.c. 487, 150 Mo. 12, supra. Trial courts in criminal cases *Page 1017 always instruct the jury that they are the sole judges of the credibility of witnesses and the weight to be given their testimony. This instruction is proper. Under our Missouri practice it is the settled law that the jury are the sole judges of the credibility of witnesses and the weight to be given their testimony. This needs no citation of authority. If that is true what defense is there for giving an instruction telling the jury what weight they must give to verbal statements or confessions made by a defendant? Does this instruction leave the jury unhampered in their deliberations as to what weight they are to give to the evidence? We think not. Does not the instruction lay particular stress upon certain evidence and does it not minimize other evidence? The instruction as given in the modified form is certainly prejudicial to the rights of a defendant. In Illinois and some other states instructions are approved that tell the jury that it the State has introduced evidence of verbal statements made by a defendant they must give as much weight to the statements that are favorable to a defendant as those that are detrimental. [See Burnett v. People, 204 Ill. 208, 68 N.E. 505.]
The form of the instruction, as given in the Hayes case, supra, which tells the jury that they must consider the whole of a defendant's statement or statements and that the defendant is entitled to what is said in his own behalf, if true, is not nearly so objectionable or prejudicial to the defendant as the modified form. We think it also invades the province of the jury, as to what weight they should give to the testimony, and should not be given. The giving of such an instruction, however, as in the Hayes case, may be harmless error.
In concluding we desire to add our approval to the criticisms made of the instruction in the modified form found in State v. Thomas, supra, and State v. Hudspeth, 51 S.W. l.c. 487,150 Mo. 12. We cannot escape the conclusion that such an instruction is prejudicial to a defendant. It follows, therefore, that the ruling in State v. Sattley and similar rulings in other cases, approving an instruction in the modified form, are not sound and those cases should be and are hereby overruled on the point in question. The motion for rehearing is overruled.