DISSENTING OPINION.
GRAY, J.I am inclined to believe that as a rule a dissenting opinion is an unnecessary incumbrance of the record. In this case, however, I fully agree with all the legal propositions announced in the majority opinion, and by merely dissenting without giving my reasons therefor, would impliedly place me as dissenting from the opinion of my brothers as to the law, when I am in full accord with all they say relating thereto.. In other words, I dissent on account of things not said, instead of things said. T believe the majority opinion entirely ignores the main point relied on for reversal.
The defendant was prosecuted on two separate counts, and for two separate offenses. The first count charged that he had unlawfully sold intoxicating liquors, while the second charged an offense'under section 7227 of the Revised Statutes of 1909, which reads as follows: “No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.”
In behalf of the state the witnesses testified to an outright sale. The witnesses were Roy Mattison and Charley Goldsmith, and they testified that on the *3434th day of April, 1811, they purchased from the defendant, in his father’s store at Salem, two half pints of whiskey which the defendant then and there had in his possession and delivered to them. One of the witnesses testified that after they purchased the whis-' key they went with the defendant to. a place known as Beeler’s restaurant where they drank one bottle of it. This was the evidence on the part of the state, and all there was relating to the defendant’s guilt.
The defendant testified in his own behalf, and denied that he sold either of the state’s witnesses any whiskey, or delivered any whiskey to either of them at his father’s store. The witness testified that Mattison and Goldsmith came to the store; that he was acquainted with them prior thereto; that Mattison asked him if he knew where he could get some whiskey, and he told him he did not know but would try; that Mattison gave him seventy-five cents and he went out on the street and met one Dink Ross and gave Mm the money and told Ross to meet him at the restaurant; that he with Mattison and Goldsmith, went to the restaurant and Ross returned with the whiskey, and they all drank it. The witness was asked the following questions relating to what took place at Beeler’s: “Q. Did Dink bring back the whiskey? A. Yes, sir. Q. Where did he bring this whiskey to ? A. Me ? Q. Yes? A. TJp to Beeler’s. Q. You gave it to Mattison at Beeler’s? A. No, sir. Q. Where did you give it to him? A. I give it to him in Beeler’s. Q. Dink gave this whiskey to you, did he? A. I don’t know whether he did or not; I don’t remember whether Mattison took hold of it first, or me. Q. You don’t remember whether you gave it to him or not? A. No, sir; just like a crowd around drinking; I would not swear that I got it and gave it to Mattison or Mattison reached and got it.”
With this testimony, the defendant rested, and the state still maintaining that the whiskey consumed *344at the restaurant had been purchased from the defendant at his father’s store, offered Dink Ross as a witness, who testified that he did not buy any whiskey for the defendant, and that he did not deliver any whiskey to any one at the restaurant. The state again called Charles Goldsmith, and he denied that Ross brought any whiskey to the defendant at the restaurant, but said that Ross did bring a pint of whiskey to him.
The evidence discloses that Mattison and Goldsmith, who furnished the state’s testimony, were confined in the county jail for larceny at the time they testified; that on the 4th of April they stole some bicycles at Salem, and left for parts unknown; that they were overtaken by the officers and arrested, and they testified that they had another pint of whiskey in addition to what they testified they got from the defendant. This testimony corroborated the testimony of Goldsmith that Ross did bring a pint of whiskey to Mm at the .restaurant.
In behalf of the state the jury were told if the defendant had possession and control of the whiskey and handed it to the prosecuting witness on receipt of the .money paid by the latter, then such facts constituted 8 sale, and the jury should convict the defendant on the first count in the information; and then the instruction proceeded: “If however the defendant Fraser did not have possession and control of the whiskey at the time, but the witness gave the defendant the money and asked defendant to get him some whiskey, and if defendant took the money and went and got the whiskey from some other person and brought it back and delivered it to the witness Mattison, these facts could not constitute a sale of the whiskey by defendant, but would constitute a delivery as charged in the second count in the information.”
By this instruction the jury were told that if the defendant had the whiskey in Ms possession and de*345livered it to the witness on receipt of the money, he was guilty on the first count of the information. But if he did not have the whiskey in his possession, but took the money and went and got the whiskey from some other person and brought it back and delivered it to the witness, Mattison, then such facts would not constitute a sale, but would constitute a delivery, and to convict him under the second count.
Now ‘there was not a word of testimony from any witness that the defendant took the money at his father’s store and went out and got the whiskey from any person and brought it back and delivered it to the witness, Mattison. In his assignment of errors, the appellant complained of the action of the court in giving this instruction, and puts his assignment of error in plain language, as follows: “There was a total lack of evidence to support this fourth instruction. No witness testified to any fact tending to show the defendant ‘went and got the whiskey from some other person and brought it back and delivered it to Mattison.’ ”
Again in his printed argument has the appellant attacked this instruction in the following language: “The instruction assumed a state of facts not shown by the testimony, and the jury was misled thereby, evidently assuming that, although they could not find it themselves, there must be some evidence to support the instruction or the court would not have given it. ’ ’ When it is conceded, as it must be, that there was no evidence in the case, upon which to base this instruction, then it must be conceded that it was error to give it, and the only question remaining is, was it harmful error of such a nature as to require a reversal of the judgment?
In my judgment, this is the only error in the case, and I have written this dissenting opinion because the majority opinion entirely ignores it. I think when an appellant has plainly raised a question in his brief, *346an opinion that does not dispose of it is not an opinion disposing of the whole case. The majority opinion says that there was testimony given by the defendant .which tended to prove a delivery. This, I admit to be true, and if his evidence had been submitted under a proper instruction, the appellant would have no right to complain; but in my judgment, all the testimony that the majority opinion sets out as being sufficient to authorize a jury to find a delivery, was withdrawn by the court in an instruction. In other words, the trial court was of the opinion that the testimony of the defendant, if true, was a complete defense to both counts. In his behalf the court gave the following instruction: “Although you may believe from the evidence that the defendant received seventy-five cents from the witness Mattison with which to purchase intoxicating liquors, yet if the defendant gave that money to Dink Ross and the said Dink Ross brought the whiskey to the defendant and the" witnesses Mattison and Goldsmith, and all of them drank the whiskey together, then there .would not be a sale by the defendant to the witness Mattison, nor would it constitute a delivery by the defendant to the witness Mattison.”
By this instruction the court took away from the jury all right to convict the defendant for anything that took place a,t the restaurant, and therefore, the testimony which the majority opinion finds was sufficient to sustain the verdict, was practically excluded by an instruction of the court. This being true, on what evidence is the verdict based? It is not strange the jury refused to believe the state’s witnesses, who testified to the transaction with the defendant. They were self-confessed thieves, and the jury had a right to believe the defendant’s evidence as against their’s. The jury acquitted the defendant of a sale, and thereby showed that they did not believe a word of the state’s testimony. The court took away from the jury the defendant’s testimony, so far as it au*347thorized a conviction on either count, and therefore, this verdict is absolutely without evidence to support it.
That is is the established practice, both in civil and criminal cases, that it is error to give instructions which are not predicated on the evidence, must be conceded. [State v. Thompson, 83 Mo. 257, State v. McKinzie, 102 Mo. 620, 15 S. W. 149; State v. Elsey, 201 Mo. 561, 100 S. W. 11; Chambers v. Railroad, 111 Mo. App. 609, 86 S. W. 501.]
In State v. Thompson, supra, the defendant was indicted for murder, and he stood on a plea of self-defense. In behalf of the state the court included in an instruction the following language: “If the defendant invited the deceased out of the house to settle a difficulty with him, or to advise him how he should act, etc.” In holding this instruction erroneous, on account of including these words, the court said: “The 7th instruction on the part of the state we regard as erroneous. It does not appear in evidence that defendant invited Powell out of the house to settle a difficulty with him, or indeed what his purpose was."
In Chambers v. Railroad, supra, the court included in an instruction, a matter about which there was no evidence. Reversing the case for this error, the court said: ‘ ‘ The nature of the evidence was such that the jury finding the instruction, quoted above, given for their direction, might well conclude that the court believed the evidence on the subject of obstructions in the pipe tended to support the hypothesis submitted in the instruction. It was harmful error for which the judgment must be reversed and the cause remanded. ’ ’
In my judgment, the verdict in this case was baséd upon the fourth instruction, and as there was no evidence to support that part of the instruction, it was material error to give it, for which the judgment should be reversed.