The defendant was indicted in the St. Louis criminal court for the murder in the first degree of one John Smith. On a trial of the cause he was convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of twenty years. - On his appeal to the' court of appeals the judgment was affirmed and he has brought the cause to this court on appeal.
The only error relied on for a reversal of the judgment, is the giving of an instruction in relation to mur-’ der in the second degree, the defendant’s counsel contending that the evidence tended to prove either a case of murder in the first degree, or innocence. The instruction should not have been given, because there was no evidence to support it; but it was distinctly *128held, in the case of the State v. Wagner, 78 Mo. 644, that this error will not warrant-a reversal of the judgement. The decision in that case was based upon section 1654, Revised Statutes, which was held, in the State v. Hopper, 71 Mo. 425, to be a constitutional enactment. We are still of the opinion, however, that that section does not require the trial court to give an instruction as to murder in the second degree, if there is no evidence in the cause tending to prove that grade of crime, and, in such case, it should not be given ; but, under the statute, it is not such an error to give it as will warrant a reversal of the judgment by this court. The judgment of the court of appeals is affirmed.