On motion for rehearing.
Philips, P. J.I. It is claimed that the defendant adopted in his instructions the same error as that contained in the instructions for the plaintiff, for which the judgment was reversed. This is an entire misconception of the grounds of reversal. The opinion does not condemn the instructions given on behalf of plaintiff ; but the error of the court lay in refusing to concede-to defendant certain named declarations of law, predicated upon facts which the defendant’s evidence tended to establish,
II. It is further claimed in the motion that this-*492court overlooked the fact that the substance of the instructions, asked by the defendant, was embodied in instructions given for plaintiff.
We are wholly of a different opinion. The plaintiff’s instructions were so framed, as while, perhaps, not asserting the opposite doctrine announced in those which the court refused for defendant, and which we held should have been given, or the substance of them, yet under them the jury might well have believed that defendant’s physical presence, being in a position to aid and abet, and the fact that he may have struck the deceased after the fatal shot was fired, or approbated the act afterwards, were, any of them, sufficient to warrant .a verdict against the defendant. Whether such acts or any of them, under the circumstances, indicated the essential wrongful act, were facts to be found by the jury under proper directions from the court.
As much stress, under the instructions given for the plaintiff, as indicated by the line of argument pursued by respondent’s attorneys in their brief herein, was likely to be placed upon the fact that defendant did not actually attempt to restrain his son, or that he may have struck deceased after the fatal shots had been fired, or approved the shooting after it was done, the defendant was entitled to a distinct and clear enunciation of the law applicable to his evidence ; that, although he was present, that was not alone sufficient to warrant a verdict against him; that, although he may have run in between the parties after the shooting, or approved of the act afterwards, yet, unless the act done by him was such as to cause the death, as defined in the opinion, no verdict should go against him. The language of Judge Story, in Livingston v. Ins. Co. (7 Cranch, 506, 544), approved by this court in Cahn v. Reid (18 Mo. App. 116), is most appropriate here: “If, in any point of law, the (defendant) was entitled to such direction, the court erred in its refusal, although the direction afterwards given by the court might, by inference and argument, in the opinion of this court, be pressed to the *493same extent. For the party has a right to a direct and positive instruction ; and the jury are not to be left to believe in distinctions where none exists, or to reconcile positions by mere argument and inference. It would be a dangerous practice, and tend to mislead instead of enlightening a jury.”
In none of the instructions given on behalf of the plaintiff were the minds of the jury so directed as to what would, under the statute in question, amount to aiding and abetting, as to enable them to try the case with justice to the defendant. The “glittering generalities” in which plaintiff presented this issue to the jury left to them a dangerous latitude of conjecture, unless restrained or guided by those asked by the defendant.
As appears from the brief of counsel filed in the main cause they themselves denied the correctness of the law applicable to this case, as announced in the opinion herein; and so it is but just to them to say that they did not conceive the instructions drawn by them at the trial and given by the court were out of harmony with their position taken at this bar. Motion overruled.
All concur.