— I dissent from the opinion of the court in this case for the following reasons : As I understand the opinion, the reversal of the judgment of the circuit court is placed upon the ground of the refusal of the court to give what the opinion designates as the third in struction asked by the defendants, upon the doctrine of self-defence. If the record now before us shows, as I think it does, that other instructions were given by the court substantially embracing the theory of self-defence, and the facts upon which it is based, which fairly sub*322mitted that question to the jury, then I think it is error to reverse for that reason.
The seventh instruction given for the state, and found in this record, under numerous decisions of this court, practically presents that question, and is as follows :
“The jury are instructed that the right of self-defence does not imply the right of attack ; a party who seeks or brings on a difficulty, or who voluntarily, of his own free will and inclination, enters into a difficulty, cannot avail himself of the right of self-defence, however imminent the danger, or great the peril in which he may find himself in the progress of the difficulty, and if the jury believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, provoked, sought, or brought on, or voluntarily and of their own free will entered into a difficulty which terminated in the death of John Rea, then you cannot acquit said defendant or defendants upon the ground of self-defence.”
Instructions substantially like this have repeatedly been approved by this court, and held to “'give the accused the full benefit of all he could claim in regard to the rights of self-defence.” State v. Underwood, 57 Mo. 50. To the same effect, also, are the following cases: State v. Starr, 38 Mo. 270 ; State v. Linney, 52 Mo. 40; State v. Shoultz, .25 Mo. 153; State v. Christian et al., 60 Mo. 138, 145; State v. Brown, 63 Mo. 443; State v. Hudson, 59 Mo. 135, 138; State v. Vansant, 80 Mo. 69, 79.
The only real difference between the seventh instruction given for the state and what is here called the third instruction, asked and refused for the defendants, is that the latter submits the doctrine of self-defence, and the facts upon which it rests, in an affirmative form, while the former practically and substantially submits the same doctrine and facts in a negative form. Otherwise, there *323seems to be but little, if any, real difference between them. But concede that the affirmative form is the usual and better way in which to present this question, still, the practice of presenting the question in the negative form has met with frequent approvals of this court, and, if these rulings are to be adhered to, this case should be .affirmed. But we may waive this question, and still, I think, there is enough in this record to require an affirmance of this judgment.
The opinion at one point says that “the transcript filed here, as return to a writ of certiorari, does not show that any instructions were given for the defendants;” and, at another point, it says that “there is nothing in this transcript which allows a presumption that any instructions asked by defendants were given.” This, I respectfully suggest, is hardly an accurate statement of what, upon a careful examination, appears upon the amended transcript itself, now before us. I fully concur in the statement made in the opinion of the court, to the effect that, “what is done in the progress of a trial can only be known and preserved by a bill of exceptions,” and giving full effect to that doctrine, it shows, in my opinion, that this judgment ought not to be reversed. The motion for a new trial, made by the defendants and copied in the amended as well as the original transcript, and which is conceded to be as much a part of the bill of exceptions and record in this case as any other portion thereof, shows clearly, I think, that at least one instruction, if not more, was given for the defendants, and under repeated rulings of this court, it has been held that if the party fails to preserve the same in the bill of exceptions, the court, in its absence, will presume that it correctly stated the law, and in such cases the court will not reverse the judgment.
The sixth cause assigned in defendants’ motion fora new trial is as follows: £ £ The court erred in refusing defendants’ eleventh, twelfth, thirteenth, fourteenth and *324fifteenth instructions, and in modifying defendantsr seventh instruction, by erasing the words ‘if Anderson was in the cabin occupied by defendant Baugh, as his-guest, and while there,’ and the words ‘ came to the cabin.’ ” Prom this a fair and just inference might, I think, be drawn that instructions prior in number to said, number eleven, and from one to ten inclusive, were given on defendants’ behalf, and, at all events, it is clearly manifest, I think, that defendants’ seventh instruction,, modified by the court, was, in fact, given. It makes no-difference that defendants’ seventh instruction, when thus modified, thereby became and thereafter is to be treated as given by the court, on its own motion, still, it. is, nevertheless, an instruction duly given in the cause, and is not preserved in the bill. What that seventh instruction, so modified, was, this bill of exceptions, as I understand it, fails to show. It is only identified by the number, “seventh,” and is not otherwise set out or preserved by the bill of exceptions, and, in its absence, this, court will presume that it stated the law correctly, and from aught that appears to the contrary, that may have been the reason why defendants’ instruction ‘ ‘ called for in the bill of exceptions ” and identified as letter “ D,” was refused. 77 Mo. 474; 78 Mo. 73; 76 Mo. 18.
The defendants’ motion in arrest, also copied in this record, at least, impliedly shows that, instructions were given- for defendants. The fifth subdivision of that motion is as follows: “(5) Because the verdict is, and the sentence and judgment on defendants would be against the law.” The instructions for the state, manifestly, I think, are not the instructions here alluded to. It is probable, if not certain, that allusion is here made to instructions for defendant, which seem to be absent from this bill of exceptions.
In addition to all that, this bill of exceptions, in the amended record, which alone, it is conceded, must show what was done at the trial of this cause, fails to show *325that the defendants, in their motion for a new trial, called the attention of the trial court to the alleged error in refusing defendants’ said instructions, “called for in the bill as lettered A, B, C, andD.” No instructions, .tiras lettered and identified, appear in the motion for new trial. The only instructions then complained of as refused, as shown by the record, are marked as numbers eleven, twelve, thirteen, fourteen, and fifteen, and are not set out at length, so as to be thus identified. There is nothing in the present bill of exceptions sent up by certiorari, on defendants’ motion, by which instruction lettered “D,” called.for in said bill of exceptions, and herein complained of for the first time, can be identified as any one of these in the motion for a new trial and there described as eleven, twelve, thirteen, fourteen, and fifteen, and, under the rule above stated in the opinion, this can only be done by the bill itself, since what is done at the trial can only thus be known and preserved. Matlock v. Williams, 59 Mo. 105; Campbell v. Allen, 61 Mo. 582.
It may be conceded that the bill of exceptions, in the transcript now before us, sufficiently identifies the instructions lettered as A, B, C, and D, as those called for in the bill, and it may also be conceded that the defendants, at the time of their refusal by the court, duly excepted to its action in so doing,- and it may further be conceded that the defendants filed their motion for a new trial as set out in this bill of exceptions, and duly excepted to the action of the court in overruling the same; but still, it is insisted that the bill of exceptions fails to show that said instructions, so lettered, or either of them, was embraced in said motion for a new trial, or is the same as either of them. This the bill of exceptions alone must show, and this it fails to do. Matlock v. Williams, 59 Mo. 105; Campbell v. Allen, 61 Mo. 582. It may be, as has been held by this court, that in criminal cases it is the duty of the trial court to give all *326proper instructions, whether asked for or not, and that a failure to do so will warrant a reversal. 65 Mo. 155: 61 Mo. 233; 62 Mo. 596; 20 Mo. 55; 66 Mo. 149. But it has never been expressly held, so far as I am advised, nor does it. necessarily follow from the above cases, that where instructions, in point of fact, are given or refused, that the accused need not except to the same, or again call the attention of the trial court thereto, by the usual motion for new trial, and again except to the action of the court in overruling the motion, if he wishes to avail himself of alleged errors therein in the appellate court. Indeed the rule, it seems to me, is otherwise, as appears-' by later adjudications of this court. In The State v. McCray, 74 Mo. 305, it is said, that “ there is no motion for new trial incorporated in the bill of exceptions; consequently, what occurred at the trial, in the way of evidence adduced, or instructions given or refused, cannot be noticed by us. The rule, in this regard, is the same in criminal as in civil causes.” ' To the same effect, also,, are the following cases: The State v. Dunn, 73 Mo. 586; The State v. Robinson, 79 Mo. 66; State v. Pints,. 64 Mo. 317; Matlock v. Williams, 59 Mo. 105.
The rule in this court, as repeatedly anuounced, is-to the effect that a party will not be heard to complain of error in the giving or refusing of instructions, unless the attention of the trial court is called to the instruction in question in the motion for new trial, and this, the parties in this instance, as I understand the' record, have failed to do. State v. Emery, 79 Mo. 461; Birney v. Sharp, 78 Mo. 73; Anthony v. St. L., I. M. & S. Ry. Co., 76 Mo. 18; Matlock v. Williams, 59 Mo. 105; 61 Mo. 582. Indeed, the real question in the case at bar, as I understand the record, is not whether the trial court failed to give any instructions for the defendants, but whether, having given, in a modified form, defendants’ seventh instruction, as the record clearly shows, it was-not the duty of defendants to preserve that instruction *327in their bill of exceptions, and if they have failed so to do, ought not this court in its absence, under prior rulings, presume that it stated the law correctly, and in such case, the refusal of defendants’ instruction, lettered “D,” would afford no just cause fora reversal of this case.