OPINION OF
ROBERTSON, C.J.,DISSENTING IN PART.
The record of the district magistrate shows that on April 28, 1911, the petitioner pleaded guilty to five separate charges of obtaining money under false pretenses, and that on April 29, 1911, the magistrate sentenced him to five separate and cumulative terms of imprisonment. The cases were not designated by number and the record fails to show in which of the cases any one of the sentences was imposed. Cotmsel for the petitioner contends that the uncertainty so resulting is such that there is no valid judgment under which the petitioner can legally he kept in custody. If this is so, it is a matter of substance and not a mere technicality.
The prosecuting attorney answers that the alleged uncertainty may be obviated in any one or all of three ways: (a) by resort to the mittimuses, which, it must be conceded, would remove all uncertainty if the resort to them may properly be had; (b) by resort to the testimony of the district magistrate who, over the objection of petitioner’s, cotmsel, testified to the effect that the cases were called up for sentence in the same order in which they were called up for arraignment and plea; and (c) that the inference to be drawn from what appears in the magistrate’s record is that the cases were continued from one day to the next *303in the order in which the charges were entered, and the sentences were imposed upon the defendant in the same order. Without- passing on the first two points the majority sustain the last mentioned contention. It is from this that I dissent. The argument is that ordinary procedure and ordinary reading support the view contended for, and that such reading and conelusioti are required by common experience and common sense. Thus, the majority, by indulging a presumption which seems to me to be no more substantial than a mere conjecture, find that the .magistrate’s record shows a valid subsisting judgment and sentence, or, rather, five such, free from any uncertainty or indefiniteness. But as I look at it there is no more reason for presuming that on the second day the cases were called up in the same order in which they were called on the first day than there is for supposing that they wore called up in the reverse or a different order. It is purely and simply a question of fact, for the event may have occurred as well one way as the other and there cannot be said to be any common observation, experience or other proper basis for a presumption one Avay or the other. Presumptions of fact which have been referred to as “the bats of the laiv, flitting in the twilight, but disappearing in the sunshine of actual facts ” (196 Mo. 550, 571) may and should be indulged under proper circumstances and when they rest upon solid ground, but the indulging of a presumption whose basis is unstable is as apt to lead aivay from the truth as toward it.
The district courts are not courts of record, but the magistrates are required by statute to keep a record of their proceedings, transactions and judgments. Ordinarily the sentence or judgment entry should state the offense for the commission of aaEícIi the defendant was sentenced, but it is enough that that can be ascertained from the record as a Avhole. In the case at bar, however, as it seems to me, the record is fatally defectiAre, and valid sentences can be shown only by recourse to the mittimuses or the testimony of the magistrate. Whether recourse *304can legally be had to either of those sources I need not stop to consider in view of the conclusion of the majority that the petitioner must be remanded. As to the other questions discussed in the opinion of the court I agree with what is there said.