Dissenting. — Unable to agree to a portion of the foregoing opinion, I will briefly give the reasons for my dissent:
I. My first point for discussion will be the failure of the trial court to give an instruction relative to the alleged extra-judicial confession of the defendant. At an early day in this state, when discussing the duty of a court in this regard, it was said, “it is the duty of the judge of a criminal court, as well as any other court of record, to instruct the jury in all the law arising in the case.” Hardy v. State, 7 Mo. 608. This was in 1842. In 1845, when regulating the practice and proceedings in-criminal cases, the legislature saw fit to enact the following : “The court shall not, on the trial of the issue on any indictment, sum up or comment upon the evidence, or charge the jury as to matters of fact, unless requested so to do by the prosecuting attorney, and the defendant, or his counsel, but the court may instruct the jury on any point of law arising in the cause, which instruction shall be in writing, unless the prosecuting attorney and defendant consent to its being given orally.” R. S., 1845, p. 882, sec. 28. This section of the statute has remained on the statute book ever since. 2 R. S., 1855, p. 1195, sec. 81; G. S., 1865, p. 851, sec. 30; R. S., 1879,. sec. 1920.
In Couley v. State, 12 Mo. 462, the judgment was reversed. The court refused to give proper instructions asked by defendant in relation to extra-judicial confessions, and gave, of its own motion, improper instructions *593to the jury. The judgment was reversed for the latter error. But the clear intimation is given in that case that the judgment would not have been reversed for the failure to give proper instructions when asked by defendant.
This was in 1849, and no allusion was made to the statute in such cases already referred to. In State v. Mathews, 20 Mo. 55, it was ruled : “It was the duty of the court to instruct the jury as to the law of the case. The instructions asked by the defendant’s counsel may have been objectionable in their phraseology, but the court should not, therefore, have neglected to give such as the law of the case required.” This was in' 1854, and no allusion is made to the statute, and the opinion was written by Judge Ryland, who wrote the opinion in Couley v. State, supra, and had also written the opinion in State v. Clump, 16 Mo. 385, cited in the majority opinion. In State v. Schoenwald, 31 Mo. 147, the case of Hardy v. State, supra, was cited, with approval, and the doctrine therein stated was reiterated in express terms, but still no allusion was made to the statute. This was in 1860, and the opinion was written by Judge Scott, that sturdy defender of right and invincible hater of wrong, who was on the bench with Ryland, J., when the case of State v. Mathews, supra, was decided.
In the section already quoted I construe the words, “may instruct,” etc., as meaning “ shall instruct,” etc., as this is the invariable rule respecting matters which relate to powers bestowed on public officers, that such powers shall be exercised in a manner promotive of justice and the public good. And what more promotive of such ends than that the juries of this state in criminal cases, charged with the issues of life and death, be properly instructed in all the law of the case ? In State v. Jones, 61 Mo. 232, the cases cited in 7, 20, and 31 Mo., supra, were cited with approval, and it was there laid *594down that it was the duty of the trial courts, if the law of the case is not fully declared in the instructions asked, of its own motion, to prepare those which will exhibit to the jury all the law which has any bearing on the facts established by the testimony. This was in 1875.
In State v. Stonum, 62 Mo. 596, when no instructions were asked by defendant, Wagner, J., said: “In State v. Mathews, 20 Mo. 55, it was expressly adjudged that it is the duty of the court in all criminal cases to instruct the jury as to the law; that if the instructions offered are objectionable, the court should proceed to give such as the law requires.” Aside from this being binding authority, we think it is sustained by good reason. Juries should not be allowed to guess at the law in such cases. The court should instruct them as to their duties, and as to the law in the case. This was in 1876.
In State v. Branstetter, 65 Mo. 149, the cases mentioned in 20, 61, 62 Mo., supra, are cited with approval, and a quotation made from the case last referred to, and the law, as already declared, again laid down. This was in 1877. In State v. Kilgore, 70 Mo. 546, the Branstetter case was so qualified as to exclude “ collateral matters.” This was in 1879. The legislature of that year, having doubtless noticed the occasional aberrations from the true path of adjudication, as established in 7, 20, 31, 61, 62 and 65 Mo., supra, enacted an entirely new section, as follows: “The court must instruct the jury, in writing, upon all questions of law, arising in the case, which are necessary for their information in giving their verdict.” R. S., 1879, sec. 1908. This section, it will be observed, uses substantially the same language used by Judge Tompkins in Hardy v. State, supra, already quoted. The language of Judge Tompkins is : “It is the duty of tlie judge of the criminal court to instruct the j ury * * in all the law arising in the case.” The language of the statute is : “ Courts must instruct the jury *595in writing upon all questions of law arising in the case,” and then, in order that there might be no mistake about it, the significant words are added, “which are necessary for their information in giving their verdict.”
If we are to obey this section, I cannot see how we are to escape our duty in condemning as erroneous the failure of the trial court to give an instruction in relation to the insufficiency of extra-judicial confessions alone to warrant a conviction. The law is well settled in this country that, when uncorroborated, such confessions are wholly insufficient. State v. Patterson, 73 Mo. 695; Wharton’s Crim. Evid., sec. 633. Aliunde such confessions, there must be proof of the corpus delicti, and this involves two points to be proved. First, the criminal act charged; second, the defendant’s agency in the production of the act. State v. Dickson, 78 Mo. 438; Whar. Crim. Evid., sec. 325; 1 Whar. Crim. Law, sec. 311. Is it necessary to put the query: Did the jury need any information on this branch of the criminal law % If the question being discussed was one of law, arising in the case, and “ necessary for their information in giving their verdict,” the instruction on that question of law was imperatively demanded by the express terms of the statute. So that the only inquiry to be made is, is the statute to be obeyed % Its meaning, whether we consider the plain words in which that meaning is couched, or whether the statutory or judicial history aforesaid, cannot be gainsaid, and the legislature must be presumed conversant with that history. Moreover, as was well known, that section was drawn either by, or else at the suggestion of an author of a work on the subject of criminal law, and then a nisi prius judge, who was in attendance at the revising session of the legislature of 1879, at their request. Oddly enough, this statute has never been alluded to in opinions heretofore rendered. Nor is it even so much as referred to in the majority opinion, though cited in the brief of *596counsel. Sometimes this court has hugged criminal statutes very closely, and unflinchingly enforced them, whose constitutionality was very questionable, indeed, even when their operation was repugnant to common law and common right — nay, more, to liberty and life; and certainly a statute ought to be enforced when, like the one here before us, its provisions are in favorem vitce, requiring the court to inform the jury on all the law. arising in the case.
But- aside from the statute, this court, in a number of decisions in addition, to those named, has repeatedly affirmed it to be the duty of the trial court to instruct the jury in criminal cases, covering the whole law arising on the facts, whether such instructions be asked or not, and surely if it be the duty of the court to instruct as to the law of the case, that cannot be abdicated by reason of any failure of asking that such duty be performed. Partial and half-way instructions to a jury may frequently, and generally will, result in misinforming and misleading them as to their duty in giving their verdict, as much so as instructions wholly erroneous, or failing altogether to instruct them. I now give some cases in which this court, in more recent instances, has reiterated the doctrine of the duty of the trial court in this regard: Thus, in State v. Banks, 73 Mo. 592, this court said: “It is the duty of the trial court, in criminal cases, as we have repeatedly ruled, to give correct instructions,, covering the whole law arising on the facts, whether such instructions be asked or not.” In the later case of State v. Palmer, 88 Mo. 568, the same doctrine was reiterated in briefer terms. In consequence of the' foregoing, the counsel of defendant were entitled, as of right, to rely, in all confidence, on both the rulings of this court, so frequently reiterated, as well as on the express mandate of the law, that “the court must instruct the jury, in writing,’ upon all questions of la w arising in the case, which -are necessary for their information in. *597giving their verdict.” If this statute is not meaningless, if its commands are to be respected, if, on the question ■of law in relation to extra-judicial confessions, the jury-needed information in making up their verdict, then the conclusion follows, with 'resistless force, that palpable ■error was committed in failing to instruct them on that point.
II. My second point is this : The alleged extrajudicial confession of the defendant was proved by Dingfelder. When the report of this case appears on the face of our reports., I desire that the substance of the whole transaction which led to his sham arrest, indictment, and incarceration, on false testimony and on a false charge, in order to obtain a confession from the defendant, together with all the means employed to that ■end, as well as the testimony as to the alleged confession, be preserved. It is no objection to the confession, of course, if obtained by falsehood, deception, trick, or artifice, and I have nothing to say on that point; but I do have this to say: that, considering the circumstances in which that confession is said to have been obtained, the witness, Dingfelder, occupied, before the law, as unfavorable an attitude as does an accomplice, who, by his testimony, slips the halter from his own neck and places that halter about the neck of another alleged participant in the crime. In that case, the instinct of self-preservation, the first law of nature, relieves, to some extent, the infamy of the degradation, and palliates, in some sense, the baseness of the betrayal. In this case, there is no such alleviating circumstance, nor palliating feature ; the motive which prompts is like the reward it seeks, and both are unfathomable in their baseness. The juries are invariably [instructed to receive the testimony of an accomplice with great caution, and not to believe him unless corroborated from an independent source to the extent of establishing the guilt of the defendant on trial. Why is this done ? Because the testimony comes from *598a polluted source. Au instruction in regard to the insufficiency of the testimony of an accomplice, when uncorroborated, was refused in State v. Jones, 64 Mo. 391, and for this the judgment was reversed. At the present term of this court, in the case of State v. Chiagk, ante, p. 395, one of the grounds of reversal was a faulty instruction in regard to an accomplice’s testimony. What more polluted source of testimony can be conceived of than the testimony of him who was offered in the case at bar to establish thei alleged extra-judicial confession ? Although I know of no authority on the point, I am persuaded that the same considerations which require a cautionary instruction to be given in regard to the testimony of an accomplice, require, also, a similar instruction to be given in the present instance, and the duty of giving such instruction is to be regarded in the same light as the duty commented on in the first paragraph of this opinion. On the grounds mentioned, I am for reversing the judgment.