I concur in the result and in all of the opinion of Judge RAILEY, except Paragraph III. I think the evidence was entirely circumstantial.
The subject of circumstantial evidence is collateral. An instruction on that subject is not required to be given unless requested. I concurred in the contrary view in State v. Swarens, 294 Mo. l.c. 156 and 160. Subsequent consideration has convinced me that I was in error in my views in the Swarens case. The controlling opinion in that case merely held that an instruction on circumstantial evidence would have been proper. I think Judge RAILEY has announced the correct rule in Paragraph II of his opinion in this case. Only three judges concurred in the contrary view in the Swarens case, and that case is not controlling upon that point in this case. *Page 9