I concur in the result in this case, but do not concur in the discussion of the assignments in the motion for new trial in paragraphs two and three. In these paragraphs it is held that the assignment in the motion that the trial court failed to instruct the jury on circumstantial evidence was not a sufficient assignment. It was a sufficient assignment under the law before the Act of 1925. [State v. Swarens, 294 Mo. l.c. 156 and 158.] And ever since the Swarens case it has been recognized as a rule that the court must instruct on circumstantial evidence, whether requested or not, where the State depends wholly upon circumstantial evidence. Judge RAILEY himself recognized the application of the principle in case of State v. Bennett, 297 Mo. l.c. 194.
But that discussion was wholly unnecessary in this case, because the case was tried in September, 1925, after the Act of 1925, page 198, was in force, where it provides that the motion for new trial (Laws 1925, p. 198) must set forth in detail and with particularity the specific grounds and causes therefor. A reference to that statute would be sufficient to dispose of those assignments of error discussed.