ON MOTION FOR REHEARING. Appellants in their motion for a rehearing again directed our attention to the fact that the court instructed the jury as to appellant Jacobs only on murder in the first degree, and that the court specifically told the jury either to convict him of murder in the first degree or acquit him. As stated, the jury returned a verdict for murder in the second degree as to both appellants, and this disobedience to the court's instruction is assigned as error.
As said by this court: "The test of error is the presence of prejudice" (State v. Hill, 273 Mo. 329), and if appellant Jacobs was entitled to an instruction on murder in the second degree, he could not have been prejudiced because the jury did that which the court failed to say it might do.
Assuming that appellant Jacobs was entitled to an instruction on murder in the second degree, if convicted of murder in the first degree, the court's failure to instruct on murder in the second degree would have constituted error, appellant Jacobs was not prejudiced by *Page 14 the verdict of the jury and, as said in the opinion, has no basis for complaint.
Section 3908, Revised Statutes 1919, our general statutes of jeofails, expressly forbids that a proceeding be declared invalid "for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." This statute is susceptible of easy construction, and concerning a similar statute in civil cases, this court has said: "Where a jury arrive at a just verdict, though the court held out a false light to them or threw dust in their eyes by bad instructions, yet it may not be disturbed." [Brook v. Barker, 228 S.W. l.c. 806; Mockowik v. Railroad, 196 Mo. 550, l.c. 568.] Moreover, it is the law that where an appellant is "convicted of a lesser crime than charged in the indictment, he cannot complain of error in refusing to charge on such lesser crime." [17 C.J. 352; United States v. Perkins, 221 F. 109; People v. Munroe,119 A.D. 704, 190 N.Y. 435, 83 N.E. 476; Sec. 3692, R.S. 1919; State v. Morrow, 188 S.W. 75; State v. Todd, 194 Mo. 377, 92 S.W. 674; State v. Whitsett, 232 Mo. 511, 134 S.W. 555.]
The motion is overruled. All concur.