Weight of Defendant's Testimony: Usual Instruct ion. (dissenting) — I. Pn my opinion the only claim to judicial countenance that the cautionary instruction as to the testimony of a defendant can make, is its old age and gray hairs. Pt is supported by neither logic nor justice, and, like the proverbial wolf, first found its way into our midst in the guise of a harmless and mistaken thing. It frequently has been the subject of criticism but never of commendation, and. I agree that it possesses all the frailties and infirmities that our learned brother Blair has so clearly pointed out. It is not only a palpable comment on the weight of defendant’s testimony, but is predicated upon a principle inconsistent with. the presumption of innocence, and ear*195ries with it that very inference. If the indictment' is no evidence of gnilt, and if the defendant is presumed to be innocent, what justification can there be for instructing that he is guilty to such a 'degree as to cast suspicion upon his credibility and require his evidence to be received with caution? I have always understood that the presumption of innocence attends an accused throughout the trial, and for all purposes, and this includes the time and manner of giving instructions. To justly attach the suspicion must we not presume his guilt, because there is no room for this poison in the case of the innocent, and it is contrary to human experience to say that the instruction does not have the effect of creating a suspicion whenever and wherever it is given, and suspicion once aroused is hard to down and likely to extend its fangs to all parts. After giving the general instruction on the credibility of witnesses, and the ■ rule by which their testimony is to be weighed, then to single out the defendant, who presumably is equally innocent with the rest, and admonish the jury to beware of what he says, is giving entirely too much prominence to the isolated fact which it is said section 5242, Revised Statutes 1909, permits to be proved; and this is all contrary to the uniform holdings of this court. [State v. Heath, 221 Mo. l. c. 592; State v. Edwards, 203 Mo. l. c. 545; McFadin v. Catron, 120 Mo. l. c. 274; Railroad v. Stockyards, 120 Mo. l. c. 565; Jones v. Jones, 57 Mo. l. c. 142; Barr v. Kansas City, 105 Mo. 550.]
In State v. Heath, supra, this court, in discussing a similar proposition, said: “In our opinion this instruction was properly refused. It was nothing more or less than selecting certain isolated facts and undertaking to comment upon them . . . 'This court has uniformly and repeatedly condemned instructions which undertook to treat of isolated facts which may be developed upon the trial.”
*196In Barr v. Kansas City, supra, l. c. 559, it is said: “The vice of specially calling the attention of the jury to isolated facts or otherwise giving prominence to the facts of the case favorable to one side, while measurably retiring the view of the other side by ignoring it, or presenting it only in general terms, has been frequently condemned by this court. [Sawyer v. Railroad, 37 Mo. l. c. 263; Anderson v. Kincheloe, 30 Mo. l. c. 525; Fine v. Public Schools, 39 Mo. l. c. 67; Rose v. Spies, 44 Mo. l. c. 23; Jones v. Jones, 57 Mo. l. c. 142; Raysdon v. Trumbo, 52 Mo. l. c. 38; Chappell v. Allen, 38 Mo. 213.]” In the same case the court further says: “It is a vicious mode of instruction, trenches upon the province of the jury to weigh all the evidence, without bias or comment from the court. ’ ’
Besides, the provisions of section 5242, supra, which is said to be responsible for the approval of this instruction, can hardly be said to have any real application to the person on trial. This section merely provides that no person shall be incompetent as a witness by reason of being the person on trial, or by reason of being the husband or wife of the accused, but “such fact may be shown for the purpose of affecting the credibility of the witness.” In so far as it provides that such “fact may be shown for the purpose of affecting the credibility of witnesses,” it can, in its very nature, be applicable only to the husband or wife, as the case may be, of the defendant, and not to the defendant himself, because, without any proof, we know the jury knows the identity of the accused, and when he testifies that he is the person on trial. This they know from the identity of name and things occurring during the proceedings.
The vice of this instruction is clearly apparent in at least certain cases which come before this court. For instance, in cases of rape, we have held that a conviction is warranted on the uncorroborated testi*197mony of a prosecutrix, and while it may he conceded that a guilty person on trial has a strong incentive to testify falsely, and that his testimony should he received with caution, we also know that a prosecutrix, in such a case, frequently has an even greater inducement to commit perjury. In such a case where only the prosecutrix testifies to the facts of guilt, and such facts are denied hy the defendant, this instruction is usually sufficient to break the scale balance and overcome the presumption of innocence. It casts suspicion upon the defendant and leaves the prosecutrix on a higher and more favorable plane, thus giving greater weight to her testimony.
Notwithstanding the frailties which this instruction possesses, and the somewhat stormy career through which it has passed, trial courts persist in giving it, and it has never yet been held sufficient in this State, to warrant a reversal. While I firmly believe that the instruction should never be given, I am of the opinion that there are numerous cases from whose records it appears that the same was not really prejudicial, and, therefore, insufficient to warrant a reversal, but I am further of the opinion that there are many cases where the evidence is so close,- and the defendant’s guilt so doubtful, or the nature of the trial and conditions such, that the giving of this instruction would change the result, and in such cases the error is of such magnitude that this court should not hesitate to hold it ground for reversal.
___. __. Non-Prejud¡c¡ai. II. In the instant case I do not agree with the majority opinion as to the disclosures of the record. As I have read it I have no such doubt of defendant’s guilt or the orderly character of the trial as is indicated by the opinion, and am, therefore, unwilling to reverse the judgment because of this instruction.
*198of6counsel. III. Neither do I agree that the remarks of State’s counsel in his opening statement are sufficient to work a reversal, nor do I think that the alleged closing argument is so preserved as to be open to review. It may be conceded that the opening statement was not warranted by either the law or facts, but, in my opinion, it was not prejudicial. It is but common knowledge and ordinary human experience that no juror will sit through the trial of a seduction case without the thought that the girl, whose shame and disgrace would be lessened by marriage, was anxious to and did what she could to bring about the marriage, and this statement of counsel could only have hastened the thought. Again, it was not prejudicial, because the jury knew the defendant had not married her, and her “importuning and begging” and his refusal to yield, if effective at all, would tend rather to corroborate his statement that he had not promised to marry her than to the contrary.
ofwitness! IV. I am also of the opinion that it was not reversible error to permit the father of prosecutrix to make the general statements attributed him, such' as: Appellant treated prose- . cutrix “like a sweetheart;” “he seemed to think a lot of her.” His knowledge and information upon which these alleged conclusions were predicated were completely brought out and developed in evidence, and the jury was in a position and fully capable of determining whether or not such' conclusions were warranted. Cross-examination was a complete shield to this alleged vice.
But there is another reason why this assignment is without force here. The record discloses that no exceptions were saved to the ruling of the court when this evidence was introduced.
*199strike*out.t0 V. Relative to the statement of Jeffries that “from the way they [meaning certain women] had talked about him [appellant] they had no use for him,” "the record discloses that this came out in connection with his explanation of certain matters concerning which he had been interrogated on cross-examination., After the statement was made, defendant’s counsel merely objected, and at no time requested that the answer he stricken out. We cannot justly anticipate what the trial court would have done had the proper motion been made, nor can we convict it of error in not acting when there was nothing calling for action. The court in ruling, simply directed that they ‘ ‘ go ahead, ’ ’ and after this no further reference was made to this subject. I do not think the matter is open to review.
VI. The propositions discussed in paragraphs IV, V and VI are'likewise, in my opinion,-insufficient to warrant a reversal.
VII. Unless the facts in this case are sufficient to warrant an affirmance, we have judicially committed many grievous and unpardonable sins.
I, therefore, dissent from the majority opinion in this case, and am of the opinion that the judgment should he affirmed.