Dissenting. — I continue to dissent:
I. Hemmed in by the array of authorities I have cited, beginning with 7 Mo., and coming down as late as State v. Palmer, 88 Mo. 568, all announcing the duty of the trial court, in criminal causes, to instruct the jury on all the law arising in the case ; confronted, too, by the express mandate of the statute, as contained in section 1908, that “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 *602verdict,” my associates abandon their former position, change their base, and attempt to take refuge behind the statute of Indiana, claiming that section 1908 was “borrowed from-that state.” This is a sheer assumption, as I will now proceed to show : I am informed by Judge Kelley, who was engaged upon the revision of 1879, and to whom we are indebted for many valuable additions to our criminal procedure, that the statute in question was obtained from the state of Kansas, and this assertion is sustained by the following quotation from the statutes of that state:
“ Sec. 227. The jury, being impaneled and sworn, the trial may proceed in the following order: First. The prosecuting attorney must state the case, axxd offer the evidence in support of 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 charge the jury. Fifth. Unless the case be submitted without argument, the counsel for the state shall make the opening argument, the counsel for the defendant or defendants shall follow, and the counsel for the state shall conclude the argument.
‘ ‘ Sec. 236. The judge must charge the jury, in writing, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact.” Gen. Stat. Kas. 1868, secs. 227, 236, pp. 856, 858 ; Comp. Laws Kas. 1879, secs. 4722, 4731.
It will be observed that section 1908, supra, of our statute is a literal transcript of section 227 of the Kansas statute, except the fourth clause, for which is substituted *603section 236, su/pra, modified only to the extent required by our system of practice, and except the substitution, in the fifth clause, of the word “prosecution” for the word “ state,” and the addition of the words “ or defendants.” In order to corroborate still further the position I have taken, in reference to the source whence section 1908 is obtained, I here copy section 1823 of the Indiana statute, referred to in~ the. majority opinion, but not copied.
“ Sec. 1823. Order of trial. The jury being impaneled and sworn, the trial shall proceed in the following order: First. The prosecuting attorney must state the case of the prosecution, and briefly state the evidence by which he expects to support it; and he shall then offer the evidence in support of 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. When the evidence is concluded, the prosecuting attorney and the defendant, or his counsel, may, by agreement, in open court, submit the case to the court or jury trying the same, without argument. But, if the case be not so submitted without argument, the prosecuting attorney shall have the opening and closing of the argument; but he shall disclose, in the opening, all the points relied on in the case ; and if, in the closing, he refer to any new point or fact not disclosed in the opening, the defendant, or his counsel, shall have the right of replying thereto, which reply shall close the argument in the case. If the prosecuting attorney shall refuse to open the argument, the defendant, or his counsel, may then argue the case. If the defendant or his counsel refuse to argue the case, after the prosecuting attorney has made his opening argument, that shall be the only argument allowed in the case. *604Fifth. The court must then charge the jury; which charge, upon the request of the prosecuting attorney, the defendant, or his counsel, made at any time before the commencement of the argument, shall be in writing, and the instructions therein contained, numbered and signed by the court. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right also to determine the l'aw. Sixth. If the prosecuting attorney, the defendant, or his counsel, desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and ■signed by the party, or his attorney, ashing them, and delivered to the court, before the commencement of the -iargument. Such charge or charges of the court, or any special instructions, when so written and given by the ■court, shall in no case be orally qualified, modified, or in any manner orally explained to the jury by the court.'1'’ Section 1828, R. S. Ind. 1881, pp. 340, 341.
By making comparison of these sections, it will be further observed that the first clause of section 1908 is not a verbatim copy of the first clause of the Indiana statute. Let the respective statutes speak for themselves. I have italicized, the sixth clause of section 1823, supra, no reference to which has been made in the opinion of the majority ; and I desire to call special attention to it, as this clause is what creates the essential and striking difference between the statute of Indiana, and the Kansas statute, and our own. And the Indiana statute, as above quoted, is, in substance, the same as it was when the case of Rollins v. State, 62 Ind. 46, was decided. This is shown by the case of Powers v. State, 87 Ind. 144, loc. cit. 153, cited by the majority, so that, as the rulings of the Indiana courts, on which reliance is based by this court, were rulings made on the sixth *605clause oí section 1828, a clause entirely omitted from the Kansas statute and from our own, it must needs follow that such rulings should have no weight in determining what our statute, section 1908, means. Our statute, with that sixth clause purposely omitted, when compared with the Indiana statute, is like the play of Hamlet with the part of Hamlet left out! And it is to be still further observed that the statutory regulations in Indiana in regard to instructions are the same in civil as in criminal cases. R. S. Ind. 1881, sec. 533 ; R. S. Ind. 1876, sec. 324. For this reason it is that the Supreme-Court of Indiana, when stating that a party who desires-special instructions must ask them, refer indiscriminately to both civil and criminal cases. Powers v. State, supra, and cas. cit.
And, in further proof that section 1908 was adopted from the statutes of Kansas, and with the judicial rulings of that state as part and parcel thereof, I cite the-case of Craft v. State, 3 Kas. 450, where the Supreme-Court, in passing upon that provision of their criminal code, that the court in charging the jury “must state to them all the matters of law necessary for their information in giving their verdict,” said: “As the provision is plainly imperative, there is no necessity of attempting to sustain it by reason. It was error to omit to do so.” This ruling was made in 1866, long before the ruling made in Rollins v. State, supra, which was not made-until May, 1878, and it is scarcely probable that case was published in time for the legislature of this state to-be apprised of it in the winter of 1879.
But, for the purposes of this argument, I may freely grant that our section 1908 was indeed borrowed from the Indiana statute, and still this concession will not support the ruling of the majority ; on the contrary, the-adoption of the Indiana statute, with the significant omission of the sixth clause of section 1823, which corresponds with the sixth clause of section 103, of the re*606vision of 1876, of that state, is equivalent, on the part of our legislature, to an absolute rejection by them of that sixth clause and all judicial rulings based upon it. There is no escape from this conclusion. Besides all that, the opinion of the majority on this motion for rehearing omits all mention — entirely ignores — section 1920, of our statute, which still remains in full force, and on which I have already commented. That section alone, if my construction of it is correct, should have compelled a reversal of the judgment; and this a fortiori must be the case where the provisions of that section have been reinforced and so strongly and conspicuously emphasized by the mandatory provisions of section 1908.
Before we had a statute on the subject in this state, it was declared to be “ the duty of the judge of a criminal court to instruct the jury on all the law arising in the case.” Hardy v. State, 7 Mo. 608. But now, where we have two sections of the statute requiring that duty to be performed, as well as many decisions of this court to the same effect, such duty is abolished, unless brought into being and existence by a request that such duty be performed! The result of all which is, that a clause in an Indiana statute, which we have not adopted, is to have the same force and effect as if it had been adopted, the result of all of which is that such unadopted statute is to destroy, overthrow, and annul a statute which we do adopt, as well as over-ride a long line of decisions ; the result of all of which is that, hereafter, in a criminal cause, a judge of a trial court (guided by the precedent here furnished), unless otherwise requested, may sit like a sphinx while the issues of life and death are being passed on before him, and may let the jury “ guess at the law.” State v. Stonum, 62 Mo. 696. Such a ruling shall never receive my sanction; it flies into the face of long-established precedent, nullifies a plainly-worded mandatory statute, and defeats the ends of public jus*607tice, which, require a fair and impartial trial, something unattainable except the jury be properly and fully instructed upon the whole law of the case.
II. In a former dissenting opinion I spoke of the testimony of Dingfelder, the assumed name of the detective, Jno. P. McCullough, who testified as to extrajudicial confessions made by the defendant, while the detective was in jail with him. In that opinion, I held that the testimony of the detective should not have gone to the jury without a cautionary instruction as to the credibility to be attached to it, similar to an instruction in relation to the testimony of an accomplice, but upon more mature reflection, I am satisfied that I should have taken a more advanced position. The detective, by a previous arrangement and concert of action between the circuit attorney Clover, the assistant circuit attorney McDonald, and Furlong, forged the name of Morris to a check, was arrested per agreement on a warrant duly issued; indicted for the forgery on testimony which was really false, but believed by the witnesses to be true, and cast into jail where he obtained the alleged confession from the defendant. • I hold now, that such a confession, so obtained by such means, should be altogether rejected. Such a course on the part of the sworn officers of the law cannot be denounced in terms too strong. It was a prostitution of the process of the court; it was a corrupting of the very fountain head of justice ; and the pure administration of the law, and public policy, imperatively demand that evidence so procured should be spurned with infinite loathing whenever offered. It is true that the opinion of the majority condemns, “as gently as any sucking dove,” the method of obtaining the alleged confession, but at the same time accepts the fruits of the nefarious work. This is condemnation in theory, but approval in practice.
III. I was content, on a former occasion, to coniine xnv dissent to the above points, believing them amply *608sufficient for a reversal; but now, before concluding, I deem it proper to notice' some other points. Counsel for the state had stated to the jury in argument that the depositions taken in England as to the defendant’s good character, “ did not amount to anything” by reason of their negative character, and counsel for the defendant, in his argument in reply, in order to meet this statement, and to correct the erroneous impression: made by it upon the jury, attempted to read from State v. Grate, 68 Mo. 22, where the doctrine is fully announced by this court that a witness who is well acquainted with the character of a person, and lives in his neighborhood will be allowed to testify to the general reputation of such person, although he has never heard it discussed; such negative evidence being regarded as evidence of the highest nature in favor of good character. But the trial court refused to permit that case to be read to the jury. Thereupon, counsel for defendant asked permission of the court to state the law correctly to the jury, and this was also denied.
There can be no doubt of the correctness of the ruling of the trial court as to its refusal to permit the authority mentioned to be read to the jury; and in so far as this point is concerned, the opinion of tire majority is correct, but in that opinion no notice whatever is taken of the request of counsel for defendant to be permitted to state the law correctly to the jury. This case, resting as it did upon circumstantial evidence alone, except the alleged extra-judicial confession already commented on, it was of,,the highest importance to the defendant to establish a good character; this had been done by the depositions in question; but under the statement of the counsel for the state that those depositions “did not amount to anything,” and under the refusal of the court to permit counsel for the defendant to correct and contradict this false and damaging statement, made by counsel for the state, it went to the jury as the law on. *609the point accompanied by the sanction of the trial court. State v. Rothschild, 68 Mo. 52; State v. Jaeger, 66 Mo. 178; State v. Martin, 74 Mo. 547.
In State v. Mahly, 68 Mo. 315, the prosecuting attorney said to the jury: “ ‘ Mahly was on the stand, why did he not tell us how; the child was burned ? It was incumbent on him to show how these things were. Lid he tell us how she was hurt? It was incumbent on him to prove how she was hurt. The defendant was there, master of his own house, and it was incumbent on him to show that he did not inflict the burns.’ Again he said to the jury in that closing argument: ‘The preponderance of testimony was in favor of conviction and against the defendant, and upon such evidence they (the jury) must convict.’ Every one of these declarations was a gross misrepresentation of the law, and such conduct on the part of the prosecuting attorney has so often been condemned by this court, that the hope was indulged that the admonitions given would be heeded. It is not for prosecuting attorneys to declare the law to the jury. That is the duty of the court, and the state’s attorney is as much bound by the law, as declared by the court, as are the jury and the accused. The court declared the law, but the prosecuting attorney, not satisfied with the instructions given by the court, made declarations of law to the jury in conflict with those given by the court, and manifestly and palpably- erroneous. Can we say that the prisoner was not prejudiced by this conduct of the state’s attorney ? If he knew the law and made these declarations to the jury in order to procure a conviction, his conduct was very reprehensible. If he knew no better he should have accepted the law as given by the court. Persons accused of crime must be fairly tried, and when so tried, we shall not interfere to prevent them from being punished j but it is not only *610the duty of this court* but of every officer of the state who has duties to perform in regard to the trial of persons accused of crimes, to see that they have a fair and impartial trial. The circuit court should have rebuked the prosecuting attorney and told the jury that the law was not as the attorney declared it to be, and for not having done so, the judgment should be reversed.”
In State v. Kring, 64 Mo. 591, the circuit attorney made the following remarks : “If you wrong the accused, by finding him guilty, that wrong can be righted, because there are two courts above this, in which the accused can have this reversed; the court of appeals and the Supreme Court. If you are not justified in finding this man guilty, it is in their power to rectify any error; while if, on the other hand, you turn the murderer loose in the community, no matter how frail might be the foundation on which you do it, and how frail may be the scaffolding, it takes him forever in the light of freedom again; you will make a wound in this community that will never be healed.” This court said:
‘ ‘ The statement that the higher courts referred to had the power to review the finding of the jury on the weight of evidence was calculated to induce the jury to disregard their responsibility. * * * The judge presiding at the trial, in our opinion, should not have permitted such remarks to be made, on the close of the argument, without a prompt correction. * * * The circuit attorney represents the state, and it is presumable that the state has no wish to convict or punish an innocent man. He is employed to see that the laws against criminals are enforced, but he is not required to avail himself of his privilege of concluding the argument before the jury, to state propositions of law which are clearly untenable, with a view to influence the jury in their verdict.”
In State v. Lee, 66 Mo. 165, the prosecuting attor*611ney had indulged in improper remarks as to the defendant’s good character, and lack of proof of it, and this court said: “The court should not have permitted the remarks of the attorney to pass, without a rebuke, which would have taken from them their sting. A proper rebuke would probably have cured the error. Such conduct of a prosecuting attorney was condemned in the case of State v. Kring, 64 Mo. 591, and will be as often as it is properly brought to the notice of this court. It should not be tolerated in civil proceedings, and will not be in criminal cases.”
In State v. Reed, 71 Mo. 200, Norton, J., said: “The court gave no instruction in regard to the legal effect of defendant’s possession of the hog, soon after it was stolen, if it was, in fact, stolen, which the evidence of the owner of it left in doubt, but the jury were allowed to grope in the dark upon that subject. In the closing argument, the prosecuting attorney, against the objection of defendant, undertook to supply the omission made by the court, and argued to the jury as to the presumption of guilt and inferences to be drawn therefrom when property was stolen and found in the possession of a person soon after the ‘supposed theft.’ The court having abdicated its duty in failing to instruct the jury as to what effect was to be given to the fact proved, that defendant was in' possession of the hog alleged to have been stolen, should at the least have forbidden the prosecuting attorney, who, in his closing argument, assumed the duty thus omitted, from making any statement calculated to mislead the jury as to the law governing that question. We think his remarks were of that character, and from the use by him of the words, ‘ supposed theft,’ the jury might well have concluded that it was not incumbent on the state to prove the corpus delicti, or the fact that the hog was stolen, but that it was only necessary for the state to offer evidence sufficient to justify a suspicion that the hog had been stolen, *612and that the possession of property supposed to have been stolen would authorize a conviction.” And the judgment was reversed.
The case just cited is directly in point, as to a trial court abdicating its duty in failing to rebuke a, prosecuting attorney when misleading a jury, as to the law, and is also directly in point as to a similar abdication of duty on the part of the trial court, where it leaves the jury to “grope in the'dark” in regard to the legal effect of certain evidence, by failing to instruct them on the whole law of the case; thus fully affirming the position taken by me in my original dissenting opinion, as to the evil influence of “partial, half-way instructions.”
IY. There was another element of error in the refusal of the trial court to permit counsel for defendant to state the law correctly, as to what constituted evidence-of good character, in order to combat the false statement, as to the law on that point, made by opposing counsel, because this course, on the part of the trial court, was, pro tanto, a denial of the constitutional right of the defendant to be hea,rd by counsel. It is quite obvious that if a trial court may thus invade the province of a defendant’s counsel, and compel him to be dumb in the face of a false statement of the law, in one particular, it may do it in all, and thus obliterate the right in question.
Y. There was error committed by the trial court in allowing the defendant to be cross-examined on subjects not even remotely referred to, in his examination in chief, not only on immaterial matters, but matters which had a tendency to show him guilty of other crimes, and thus to prejudice the jury against him. Evidence of specific acts, as is well known, can never be received when good character is the question being discussed. State v. Bulla, 89 Mo. 595. And yet, by cross-examination of the defendant,- the- state was allowed to introduce evidence before the jury which was utterly incompetent, it *613offered on the part of any other witness or in any other form. State v. Hart, 66 Mo. 208; State v. Martin, 74 Mo. 547; State v. Bulla, supra. Under the provisions of the act of 1877, a defendant who took the stand as a witness, could be cross-examined as any other witness. State v. Clinton, 67 Mo. 380; State v. Cox, 69 Mo. 392; State v. Rugan, 68 Mo. 214; State v. Testerman, 68 Mo. 408. But since those rulings were made, the legislature, by section 1918 (R. S. 1879), so amended the law as to confine the cross-examination of a defendant witness, “as to any matter referred to in his examination in chief.” This amendatory clause has been frequently ruled upon by this court, and when its behests have been disobeyed, a reversal of the judgment has been the invariable result. State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; State v. McLaughlin, 76 Mo. 324; State v. Porter, 75 Mo. 171; State v. Douglass, 81 Mo. 231; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129. The result of the opinion of the majority is to repeal the statute as it now stands, and to restore and reenact the law of 1877.
YI. The circuit attorney, as shown by an uncontradicted affidavit filed in the cause (State v. Johnson, 76 Mo. 121), in order to prevent a continuance of the cause on the part of the defendant, had agreed with defendant’s counsel that he would waive any informality as to the depositions being improperly certified, which established the good character of the defendant, and upon this waiver and agreement, the defendant announced ready for trial. But yet, the circuit attorney, in his closing argument, was permitted, over repeated objections of defendant’s counsel, to belittle those very depositions; to state that they were returned without a certificate, were not worth the paper they were written on, were utterly valueless, etc., etc., and were only read as a favor, by his permission. Having made the agreement mentioned, and having permitted the depositions to be read, without *614objection, common fairness required that his lips should be sealed as to any .invalidity of the depositions on account of lack of certification. Conduct similar to this, on the part of a prosecuting attorney, was pointedly condemned by Norton, J., as “such a departure from legitimate argument and fair dealing as to justify a reversal of the judgment.” State v. Barham, 82 Mo. 67.
YII. I have not the time, nor would it serve any useful purpose, that I make any further comments on this record. I am free to say, however, that, long as I have been on this bench, I have never examined the record in any case, civil or criminal, where the rights of a defendant to a fair and impartial trial have been so frequently and so flagrantly disregarded by a trial court, as in the present instance. The points I have commented on may be considered as but types of numerous other errors, of which I make no mention.