dissenting:
The province of this court is to redress real grievances, and not to decide moot questions. For’this reason, it is a rule of universal application, that a judgment will not be reversed on account of an erroneous instruction, unless it appears probable that the jury were misled to the prejudice of the party appealing. It is not sufficient to show that error, in the abstract, was committed in giving an instruction. It must affirmatively appear that it was prejudicial. This can only be determined by a consideration of the evidence. In other words, a'party bringing a case here for review cannot base reversible error on only part of the record or proceedings which led up to his conviction. It is said in the opinion that if the evidence were preserved by a bill of exceptions, it might appear that this instruction was not prejudicial. This announcement recognizes that a consideration of the testimony might disclose that an erroneous instruction was not prejudicial, but notwithstanding this conclusion, the opinion is based upon the erroneous theory, that it may be considered in the absence of the testimony, although whether or not it prejudiced the rights of the party bringing the case here for review can only be ascertained by a consideration of everything presented to the trial court. But the conclusion announced in the majority opinion, that an instruction may be considered without the testimony, permits reversible error to be predicated upon a part of the record and proceedings, instead of the whole, and hereafter we shall find that a party convicted of a crime will find it not only convenient, but to his advantage, when an instruction given does not correctly state the law, to bring up the instructions without the testimony, for, with the latter, it might conclusively appear that the error predicated upon the instruction did' not prejudice his rights. It is hardly necessary to refer to the many cases where we have held, in both civil and criminal actions, that in the absence of the testimony, the instructions will not be *134reviewed. It is sought to take the case out of this general rule by stating, in effect, that Instruction No. 12 cannot be applied as a correct proposition of law to <my conceivable state of facts consistent with the record. Applying this rule, the opinion, in my judgment, is not logical. True, the court instructed on murder in the first and second degrees, but it by no means follows that, in the absence of the testimony, we can sajr or assume there was testimony, when considering an instruction alone, to establish the fact that the life of Jackson was taken, except in the attempt to< rob him.
But, waiving- these matters, I cannot agree that- Instruction No. 12 is erroneous, for the reason stated in the majority opinion, to the effect that the burden of proving, that the homicide -was not committed in an attempt to rob, was placed upon the defendant. Instruction No. 10 clearly advised the jury that murder committed in an attempt to rob constituted murder in the first degree. By Instruction No. 12 they were told wdiat constituted murder in the second degree; and if they found the state, of facts therein enumerated was established by the evidence beyond a reasonable doubt, then the defendant ■was only guilty of murder in the second degree, but that the killing of Jackson would not reduce it to that degree if it appeared from the testimonjr, beyond a reasonable doubt, that Jackson’s life was taken in an attempt to rob him. Instructions must be considered as a whole, and when instructions 10 and 12 are read together, it appears to me that this was clearly the effect of the two instructions, and that under no> circumstances could the jury have been misled or have understood that any burden was placed upon the defendant, whatever, to show a state of facts which would reduce the homicide to murder of the second degree.
Nor do the views expressed by Mr. Justice Musser change the situation. I have always understood the rule to be that a court of review never acted upon what was not, or could not, be brought before it. With all due deference to my learned associates, I respectfully submit that if the decision of the ma*135jority’is followed in the future, it will inevitably result-in the reversal of convictions which would, and should, without question, have been sustained had it been declared, as it should be, that in the absence of the testimony, instructions will not be reviewed.
Now, what does the statement in the opinion of Mr. Justice White, to the effect that if the evidence were here, it might appear that the instruction upon which the reversal is based, mean, except. to say that if one convicted of a crime- only brings up the instructions for consideration, his case may be reversed, whereas, if he brought the testimony before the court by a bill of exceptions, it might not be. This is equivalent to saying, and in fact, does say, that a case may be reversed upon part of the proceedings before the trial court, when the proper rule is, that all matters before the trial court which in any manner bear upon the question presented for review must be considered before an alleged error will be declared prejudicial. That this must be the true rule is manifest from the expression just mentioned, for the very obvious reason that if the evidence were here, it might appear the instruction, although erroneous as a legal proposition, was not prejudicial. In other words, this expression of itself recognizes that, with the testimony before us, the judgment of the trial court might be affirmed, thus, in effect, saying that from all the proceedings it might appear that the error complained of was nonprejudicial. Does not this statement, then, logically recognize that the testimony must be considered before an instruction will be declared to be prejudicial, although erroneous? If it does (and I' submit that this is the only logical conclusion to be deduced from it), then it must follow, as of course, that a person convicted of a crime cannot predicate alleged prejudicial error upon an instruction alone, when, with' the testimony before us, it might appear that it was not. . In. brief,, when it is recognized that a consideration of all the -proceedings had in the lower court in any manner bearing on the question raised by an instruction, might show that it was with*136out merit, the rule must be that they must be presented here in an appropriate manner before we can say that an error worked prejudice; otherwise, a defendant convicted of a crime is permitted to gain an advantage by not bringing up the testimony in the case. There may be decisions from other jurisdictions which tend to support the conclusion of the majority, that instructions may be reviewed in the absence of the testimony; but if they do, they are manifestly illogical, and ought not to be followed.
In my opinion the judgment of the district court should be affirmed.
The writer is authorized to state that Mr. Justice Garrigues concurs in this opinion.