(dissenting).
I respectfully dissent from the conclusion reached in the majority opinion.
It appears to have been written with the worthy objective of maintaining an orderly procedure for the preservation of alleged errors for appellate review by requiring their presentation to the trial court in a motion for new trial. Certainly there can be no quarrel with this objective as it gives an appellate court the aid of over one hundred^ trial judges in the task of correcting trial errors. This fact is much more important than demanding compliance for the procedural reason of preserving a question for appellate review. Fortunately, most lawyers will correctly preserve questions for review and some semblance of procedural standards can be maintained. However, as in the instant case, where and in what manner is relief to be given to an accused who has been deprived of a fair trial for reasons not so “preserved” by his counsel. To reach both objectives consistently may be impossible, but I respectfully suggest that the opinion as written fails to reach either.
*109First, it ignores the fact that no motion for new trial was filed and considers the alleged error on its merits.
Second, it finds that the failure of the trial court to give the instruction in question, found to be supported by the evidence, was an error.
Third, the problem is disposed of, but certainly not solved, by one sentence: “We have reviewed the whole record in this case and do not believe, under the facts and circumstances therein disclosed, that the trial court’s failure to instruct on the defense available to appellant resulted in manifest injustice or miscarriage of justice.” ■
The “error,” found by the majority opinion, involved failure to correctly instruct the jury on “the law of the case.” The significance of which is compounded in view of the fact the instruction in question would have advised the jury of an authorized “affirmative defense.” The missing instruction was not one to be considered as a mere formality, definitive of some terminology or purely cautionary, and the absence of which might be considered as a harmless error. It did not pertain to a collateral issue, but would have been directed toward an essential element of the crime charged. This Court so declared in State v. Weinberg, 245 Mo. 564, 150 S.W. 1069, l. c. 1072[6] : “From a consideration of these cases, we think it may be safely said that instructions presenting the facts constitutive of the offense charged or of any grade thereof shown by the testimony, the punishment authorized to be inflicted in case of a conviction, instructions upon the presumption of innocence and reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law upon each defense interposed by the accused, are necessary for the information of the fury.” (Emphasis added.) See State v. Conway, 241 Mo. 271, 145 S.W. 441, wherein it was declared that: “Notwithstanding the foregoing rule, if satisfied from the record that there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court in the interest of justice will not hesitate to grant a new trial, though the question should be presented here for the first time.” See also State v. Chaney, Mo., 349 S.W.2d 238. If juries must be instructed at all, certainly, the absence of this instruction affected a substantial right of the defendant.
Nevertheless, the opinion finds such an “error” not to be a “plain error” for which relief could be given. Rule 27.20(c), V.A. M.R. The obvious question then becomes —Why? In other words, if a “substantial right” of the accused has been denied, by what rationale or mental process is it found that it did not result in a manifest injustice to the accused. If a substantial right was affected, of necessity the accused was denied a fair trial. If the denial of a fair trial does not come within the concept of “plain error,” what does? Neither this court nor any other court can have a more worthy objective than to protect the sacred right of any citizen to have a fair trial. It is, in fact, more than an objective — it is the basic duty of any court and the very premise upon which our criminal jurisprudence has been built.
The majority opinion by considering the alleged error, absent a proper motion for new trial, avoids the harshness of declaring that the question was not properly “preserved” and could not be considered, but reaches the same result by finding such error was not a “plain error.” This approach does violence to both original objectives by: (1) ignoring the established and desirable procedural standards of requiring a motion for new trial, and (2) denying relief to an accused who has been denied a substantial right, i.e., the hearing of his case by a jury of twelve laymen that have been correctly instructed on the law of the case. The latter is not only dictated *110by any definition of a fair trial, but is a legislative mandate found in Section 546.-070, RSMo 1959, V.A.M.S., which, in part, provides: “The jury being impaneled and sworn, the trial may proceed in the following order: (4) Whether requested or not, 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; * *
This Court in State v. Reeder, 395 S.W.2d 209, resolved a similar problem by following the suggestions of this dissent. Briefly, relief was granted an accused, when it was found the jury was improperly instructed, on the theory that the burden of proving his innocence was placed on the accused or that a burden was shifted. From a realistic view, as applied to a jury trial, the failure to give an instruction favorable to the accused increases his burden, which has the same effect as shifting the burden of proof. For instance, if the “loco parentis” instruction had been given, the jury might have found that all or some part of the punishment administered came within the realm of parental correction. No one can say with any degree of certainty what, if any, significant effect the instruction might have had on the jurors.
In essence, the majority opinion affirms the conviction of an accused (with an assessed penalty of five years in the penitentiary) by a jury not only untrained in the law but also improperly instructed as to the applicable law. With this, I cannot agree. See also State v. Beasley, Mo., 404 S.W.2d 689, for another approach to the problem. If the “plain error” rule is to accomplish its purpose, it should be applied in this case.