The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All of the judges concur.
ON MOTION FOR REHEARING. The learned Attorney-General in his motion for rehearing earnestly insists that this cause should not be reversed and remanded for the reason assigned in the opinion with reference to Instruction No. 4. The only case cited in the Attorney-General's brief in support of this instruction is State v. Ballance, 207 Mo. l.c. 617. In the motion for rehearing additional cases are cited. The instruction seems to have been copied from the case of State v. Harris, 59 Mo. l.c. 553, and approved in that case. A like instruction is also approved in State v. Rider, 95 Mo. 482, 484, and State v. Foran, 255 Mo. l.c. 222. Similar instructions, however, have been condemned by this *Page 708 court. In State v. Cole, 304 Mo. 105, 263 S.W. 207, the instruction is held erroneous as being an unwarranted comment on the evidence and also that the instruction assumes that the homicide was murder. Numerous cases are cited in the opinion in support of the ruling there made. The court also in that case criticized the cases of State v. Rider, State v. Foran, supra, and State v. Fletcher, 190 S.W. 317. The cases approving the instruction should no longer be followed and are hereby overruled on the point in question for the reasons assigned in this opinion and in State v. Cole, 304 Mo. l.c. 115, 116, paragraph 2. The motion for rehearing is therefore overruled.