CONCURRING OPINION.
FARIS, J. —I fully concur in the result reached in the opinion of my learned brother Brown in this ease, but I cannot agree with the views; expressed in paragraph 3 of his opinion so far as said paragraph and the inference contained in paragraph 2 of said opinion hold that either the amendment of 18819 or that of 1901 to section 5231, Revised Statutes 1909, has relieved the defendant from the necessity of interposing any exceptions to instructions given by the court, or to the failure of the court to instruct upon all questions of law arising in the case, or upon any one of such questions.
Prior to 1901 the clause of said section 5231 pertinent to this discussion, read thus:
*298“Fourth: 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; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.” [R. S. 1899, sec. 2627.]
In 1901 the Legislature prefixed to this clause the words “whether requested or not;” so that in my view the necessity, as a condition precedent to review, no longer existed, requiring defendant to either prepare and offer an instruction, or to specifically request the court to instruct, upon such issues in the case as were bottomed upon questions of law arising in the case which are necessary for the information of the jury in giving their verdict, or upon the questions of reasonable doubt and good character, whenever necessary.
Prior to 1901, when the amendment above mentioned was made, it was- the law in this State and in .every other state where the common law prevailed, that exceptions to instructions had to be taken at the time the court gave them or neglected, or refused to. give them, as the case might be, in order to preserve for review objections thereto in criminal cases, just' as in civil cases. [State v. DeMosse, 98 Mo. l. c. 344; State v. Foster, 115 Mo. l. c. 451.] I shall not burden these views with long citations of authorities, but the cases upholding the above statement as to the absolute necessity of preserving by exceptions taken an objection to instructions refused or given, or neglected to be given, as a condition precedent to review, will be found collated in 12 Cyc. 666 and 667, and 12 Cyc. 815 and 820. Unless the addition of the four words .above quoted has served to change the rule, this is still *299the law. ' In what wise is impossible for so slight a change of verbiage to have so far-reaching an effect?
To go back just a little ways and pick up the thread; of the argument, it may be said to be so well settled in our practice as to be fundamental that matters of exception can only be preserved in a bill of exceptions and kept alive for appellate review by a motion for a new trial. [State v. Libby, 203 Mo. 596.] Likewise it is well-settled, that instructions given or refused, or the failure or neglect to give proper instructions in a criminal case, are pure matters of exception and can be preserved for review only by exceptions and by incorporating them into a bill of exceptions. [State v. DeMosse, 98 Mo. l. c. 344; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. l. c. 543; State v. West, 157 Mo. 309; State v. Huff, 161 Mo. 459.] No one will contend that what we call for convenience the “record proper” embraces instructions given in a case, either criminal or civil. It seems to me ‘that it is utterly impossible to take the view that instructions preserve themselves in the record without exceptions made and saved thereto, unless we say that in a criminal case instructions are a part of the record proper. It is fundamental and manifest that they are not. Without a proper .bill of exceptions, kept alive by a sufficient motion for a new trial, neither this court nor any other appellate court, where the common law prevails, would ever for a moment consider error arising upon an instruction unless a plain statute so commanded. This court long prior to the amendment of 1901 and the addition of the provision that a req%\,est for instructions on the matters therein specified should no longer he necessary, had held that exceptions to instructions must be preserved in order to make objections touching them reviewable upon appeal, as an absolute condition precedent, without which no review here could be obtained. This court *300from 1901 until the case of State v. Conway, 241 Mo. 271, had uniformly so held. It had: also held likewise from the very beginning up to the date of the amendment of 1901. No well-founded doubt through all the years until the Conway case was decided, ever troubled this court upon this question, and we uniformly refused to take heed of objections in anywise affecting instructions when such objections were urged here unless they were preserved in a bill of exceptions with specific objections and exceptions urged thereto, which bill of exceptions and specific objections and exceptions to the instructions themselves were kept alive by a sufficient and timely motion for a new trial. [State v. Grimes, 101 Mo. 188; State v. Patrick, 107 Mo. 147; State v. Inks, 135 Mo. 678; State v. Nelson, 225 Mo. 551; State v. Kretschmar, 232 Mo. 29; State v. Tucker, 232 Mo. 1; State v. Urspruch, 191 Mo. 43; State v. Sykes, 248 Mo. 708; State v. Finley, 193 Mo. 202; State v. Harris, 199 Mo. 716; State v. Jones, 191 Mo. 653; State v. Morgan, 196 Mo. 177, and cases cited, supra; State v. Gordon, 196 Mo. 185.] Likewise we held, erroneously, I think, that no valid objection to the failure of the court to instruct “upon all of the law in the case,” would avail, unless defendant specifically embraced in his objection and exception, the precise point in which the instructions given by the court were lacking. [State v. Barnett, 203 Mo. l. c. 658; State v. Weatherman, 202 Mo. 6.]
It will be noted, therefore, upon an examination of the cases, that when the amendment of 1901 was made, this court was uniformly requiring timely exceptions touching instructions as a condition precedent to review. It cannot, I think, be successfully contended that the Legislature merely by the addition of the words “lufoether reqioested or nob” either specifically or impliedly abrogated the necessity for such exceptions. The Legislature had an opportunity of so saying in express words when they amended this statute *301in 1901. Since they failed to say it either expressly or by far-fetched implication, we ought not to say it for them. A careful reading of the clause under discussion will show that while the failure to instruct upon all questions of law arising in the case and necessary for the information of the jury, and upon the subjects of good character and reasonable doubt, whenever necessary, is a good cause for setting aside the verdict of the piry and for granting a new tiral, it is not said in that clause that it is good cau,se or any cause for our reversing the case and remanding it. This view is suggested in the learned opinion herein by Judge Brown. This court, in such a case as this, is but a court of errors, and as Judge Brown well says, we have neither the power of setting aside verdicts, nor of granting new trials. We can only order the trial court to do these things. This view still leaves us in a case like this a court of errors, and we have formulated by our decisions, or, the Legislature has formulated for us in statutes enacted by it, certain rules by which the errors urged before us are preserved for our review. I cannot read in the clause of section 5231 under discussion, any intent whatever on the part of the Legislature to change in anywise any of these general rules by which objections to instructions are preserved for review. The amendment of 1901 merely changed the law so as to render unnecessary any request for an instruction upon any and ‘ ‘ all questions of law arising in the case, which are necessary for their [the jury’s] information in giving their verdict,” including reasonable doubt, and when necessary good character. As to these matters the trial court had put upon him the duty of instructing sua sponte correctly upon the law. If he failed to do so, or if he erred in so doing, it was his duty to set aside the verdict and grant defendant a new trial. If he failed to so instruct, and likewise refused thereupon to set aside the verdict of the jury and grant defend*302ant a new trial, it then upon appeal becomes onr duty (if according to other rules centuries old and not affected by the slight amendment by the words “whether requested! or not,” the matter was properly saved for our review), to order the court nisi to grant a new trial. At the time of the several amendments of the clause in question, the rule as to the necessity both for an exception taken at the time of giving the instructions and for a motion for a new trial preserving and keeping alive such exception, is well stated in the case of State v. Cantlin, 118 Mo. l. c. 111, where it is said: “The instructions given by the court seem fairly to cover the issue joined between the State and the defendants, and if they did not, there is no statement in the motion that the court failed to give all proper and needful instructions. So that, if the court did fail to instruct the jury upon all questions of law arising in the case which were necessary for the information of the jury in giving their verdict, exception should have been saved at the time such failure occurred, and the point should have been preserved in the motion for a new trial, and this for the reason that exceptions in criminal causes occupy the same footing- as do those in civil matters, and can only be preserved by the same methods of procedure. [State v. DeMosse, 98 Mo. l. c. 344; State v. Foster, 115 Mo. 448.]”
Por these reasons I cannot agree either that a defendant in a criminal case is entitled to a review here of an instruction given -or refused, or of the failure of the court to give an instruction, unless he lodged a timely exception with the trial court, and unless he preserved1 such exception in his motion for a new trial. I am not saying that he should request specific instructions upon such matters as are set out in section 5231, that -is to say, as to any “questions of law arising in the case which are necessary for the information of- the jury in giving their verdict, ’ ’ or as to the subjects *303of good character and reasonable doubt, when the latter issues are properly presented by the evidence. I also agree that the questions of reasonable doubt and presumption of innocence should always be given to the jury, but I am saying that the attention of the court at the time the instructions are given to the jury ought to be called to his alleged: failure or neglect to instruct upon any of the above matters; not necessarily specifically, nor by preparing or presenting a written instruction, but by a general exception — for example, for that “the instructions as given by the court are not the law of the case,”' or that “the instructions given do not 'embrace all of the law of the case,” or that “the court has not instructed upon all questions of law arising in the case and which are necessary for the information of the jury in giving their verdict;” or in such other apposite way as to call the attention of the trial court to his failure to comply with the statutory mandate herein discussed; and this exception should be kept alive by a proper motion for a new trial. The defendant ought not to be permitted (and in my view the clause under discussion does not in its present form permit, nor has it ever expressly, or, impliedly permitted, or invited the defendant) to lie in wait for the court. It might well be that instructions covering all the phases of the law involved, and upon good character and reasonable doubt, were actually prepared by the court, and yet not given for some physical reason, as for that they were lost or misplaced. An exception timely lodged would ordinarily remind: the court to remedy the inadvertent default or neglect, or enable him to 'supply an instruction prepared, but mayhap lost from the files, and thus avert a mistrial. I agree with what is said in State v. Weinberg, 245 Mo. l. c. 575, and quoted in the opinion of Judge Brown, defining what instructions are comprehended by the clause under discussion, and as to such no request either in writing or orally is necessary to be made, but *304when the court does not give such instruction, or gives them erroneously, the defendant is not relieved from the necessity of lodging a general exception to the court’s error. As to instructions upon what have been called “collateral matters,” that is, such matters as are not embraced in the definition above referred to, my views are that a specific request must be made; that the defendant should by his counsel either write them and offer them to the court with a request that they be given, or that he should specifically request the court to give the same and save a proper exception to the court’s refusal, and keep his exception alive by a proper motion for a new trial, before reversible error can be bottomed upon the alleged error of the trial court. Neither in my opinion does it avail to go back to the amendment of 1889, where it was first provided that the failure of the court to instruct “upon all questions of law arising in the case,” should in a felony case be good cause for setting aside a verdict of guilty. It may be conceded with all frankness that a departure as between the rule in misdemeanors and felonies, is logically inferable from the language of the amendment of 1889 and the rule as to non-direction in misdemeanor trials which has since been uniformly followed. But barring a legislative pronouncement to this effect (and there is none anywhere), does this obviate the rule requiring exceptions to be lodged in the trial court as a condition precedent to the review of any and all matters not of the record proper? [State v. Stevens, 242 Mo. 439.]
Strictly speaking, what place have instructions in a bill of exceptions unless they get into the- bill by virtue of the fact that exceptions are saved to them? ITow else do they legally and properly become parts of the bill of exceptions unless they be excepted to? In the instant ease, objections were made and general —very general — exceptions were timely interposed by defendant to the instructions given by the trial court. *305These objections and exceptions were kept alive in the motion for a new trial, where it was specifically urged that “the court erred in not instructing the jury as to the presumption of innocence of defendant and the law in relation thereto.”
In my view the many safeguards provided by law and practice for a defendant’s safety considered; the fact that in every felony trial if defendant be too indigent to hire counsel, or too friendless to have counsel hired for him, it is the duty of the court to appoint counsel to represent him; and the fact that by divers provisions of our procedure he is allowed vast advantages over the State, render any other view dangerous, as calculated to provide holes for the escape of the guilty, rather than shields for the protection of the innocent. For this reason I concur in reversing this case, but I do not agree in what is said in paragraph III thereof, and so much of it as would obviate the necessity of saving exceptions to instructions given or refused, or neglected to be given, as a condition precedent to review. In so far as the case of State v. Conway, 241 Mo. 271, is in conflict with the views expressed herein, upon the questions of the necessity of saving exceptions to instructions- and of preserving such exceptions in the motion for a new trial, that case should be followed no longer.