On motion for rehearing.
Norton, C. J.A motion for rehearing has been • filed in this case, and among other reasons assigned for granting the prayer of the motion, it is insisted that the ruling made in the decision rendered, to the effect that the omission or failure of the court, although not requested so to do, to instruct the jury that an extra-judicial confession, unless corroborated by other evidence as to the corpus delicti, would not justify nor authorize a conviction, was not reversible error. Is it in conflict with section 1908, Revised Statutes % This section appears for the first time in the revision of 1879 as a new section, and is as follows :
“ Section 1908. Order of trial. —The jury being, impaneled and sworn, the trial may proceed in the following order : First. The prosecuting attorney must *599state the case and offer the evidence in support oi the prosecution. Second. The defendant, or his counsel, may-then state his defence and offer evidence in support thereof. Third. The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case. Fourth. The court must instruct the jury in -writing upon all questions of law arising in the case which are necessary for their inf or-mation in giving their verdict. Fifth. Unless the case be submitted without argument, the counsel for the prosecution shall make the opening argument, the counsel for the defendant shall follow, and the counsel for the prosecution shall conclude the argument.”
This section of our statute was borrowed from an Indiana statute, which was on the statute books of that state, and which had received judicial construction in the case of Rollins v. The State, 62 Ind. 46, when it was incorporated in the revision of 1879. The Indiana statute provides {vide R. S., Ind. 1881, p. 340) that, “in charging the jury, he, the court, must state to them all matters of law necessary for their information in giving their verdict.” It will be seen that the language employed in said section 1908, Revised Statutes, 1879, is identical in substance with the Indiana statute. It is as follows : “ The court must instruct the jury upon all questions of law arising in the case which are necessary for their information in giving their verdict.”
In further proof that said section 1908 was borrowed from the Indiana statute, it will be found on comparison, which comparison we have made, that the first, second, and third clauses of said section, as well as what precedes those clauses, are verbatim copies of the first, second, and third clauses of the .Indiana statute, as well as what precedes those clauses in the statute of said state.
In construing this statute it is distinctly held by the *600Supreme Court of that state, in the case of Rollins v. The State, supra, decided in 1878, that when the instructions given to the jury are right as far as they go, the mere failure of the court to instruct as to other proper matters, is not available as error, where no request to so further instruct is made. The doctrine of this case was reaffirmed in the case of Adams v. The State, 65 Ind. 565, decided at the May term, 1879, from which we quote the following: The court directed the attention of the jury to the point that, in manslaughter, as well as in murder, there was the ‘common element of intent to kill,’ but throughout the instructions the jury were never informed that there was, or could be manslaughter without any intention to kill. It is this omission of the coxirt to instruct the jury in regard to a grade of homicide well recognized in and by our law, of which appellant’s counsel complains in argument in this court. But it seems to us appellant is in no condition to complain in this court, of the omission of the circuit court to instruct the jury in regard to involuntary manslaughter. No complaint is made by appellant of the instructions given, but the only complaint is that the court omitted an instruction which the appellant claims was applicable to the case, made by the evidence, and ought to have been given. This may be conceded, but before the court could be charged with positive error, on account of its omission to instruct the jury in -relation to involuntary manslaughter, it was necessary, we think, that the appellant should have requested of the court such an instruction. If the appellant had requested such an instruction, and if the court had failed or refused to comply with such request, then, but not until then, the appellant could have complained of the omission of the court to instruct the jury in relation to involuntary manslaughter as probably erroneous. The record fails to show that the appellant requested any such instruction, and, therefore, he cannot be heard to complain of the *601court’s omission to give such an instruction.” See, also, Powers v. State, 87 Ind. 144, where the question involved is fully and ably discussed, and also case of Rauck v. State, 9 West. Rep. 197.
It is a principle so well established as not to require the citation of authorities to support it, that when the legislatures borrow or incorporate in the statutes of this state the statute of another state, Which has been judicially construed by the courts of such state, that the construction thus put upon it will be adopted and followed by the courts of this state.
Viewed in the light of what is above said, the point made by counsel that the judgment should be reversed, because of the failure or omission of the trial court to instruct the jury, although no request to that effect was made, that they could not convict upon the extra-judicial confession of defendant alone, but must look for corroboration as to the corpus delicti in the other evidence, is not well taken. The other points relied upon in the motion for rehearing, it is unnecessary to notice, further than to say that they were considered in the opinion delivered, and ruled upon adversely to the views of defendant’s counsel.
The motion for rehearing is overruled,
aud in this all the judges concur, except Sherwood, J., who dissents.