or orally, request any instructions, but in his motion for new trial complains of the alleged failure of the trial court to instruct on the legal presumption of defendant's innocence and the law of reasonable doubt. There were in fact no such instructions given by the court. The defendant introduced evidence tending to prove his previous good character, and on this evidence the court gave the following instruction:

tion; otherwise it will not constitute reversible error for the court to omit instructions on that point, because the issue thus raised, while it may be helpful to defendant, is one of a collateral nature, and not indispensable in arriving at a correct verdict. State v. Starr, 244 Mo. 161, 148 S. W. 862.

In discussing the instructions which should be given by the court on its own motion "whether requested or not," Kennish, J., in the late case of State v. Weinberg, 245 Mo. loc. cit. 575, 150 S. W. 1072, said:

"Instructions presenting the facts constitu

"If defendant has proven to your reasonable satisfaction that prior to the alleged difficulty he sustained a good reputation as a law-abiding citizen, then you should consider that fact in passing on the question of his guilt or inno-tive of the offense charged, or of any grade cence, as the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good; but if you believe beyond a reasonable doubt, from all the evidence in this case, including that of good character, that defendant is guilty on this charge, his good character will not justify

or excuse him."

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 jury."

Kennish, as above quoted, and, unless the We adhere to the views expressed by Judge doctrine of reasonable doubt was sufficiently

The court gave an instruction on the presumption arising from the intentional use by defendant of a deadly weapon upon a vital part of deceased. In fact, its instruc-expressed in the instruction touching good character as hereinbefore quoted, the cause tions are not objectionable, unless a specific must be reversed. instruction on reasonable doubt was necessary for the information of the jury in giv

ing their verdict, as required by section 5231,

R. S. 1909.

[4] The Attorney General insists that, as the words "reasonable doubt" were used in

the instruction before quoted, it was not nee[1, 2] The doctrines of presumption of in- essary to give a separate instruction on that nocence and reasonable doubt are so closely point-that the law really contemplates that related that it has been held that it is not only one instruction shall be given in a reversible error to omit to instruct on the criminal case which shall cover all the rules law of presumption of innocence, if the court of law necessary for the guidance of a jury. has fully instructed on the subject of reaWithout deciding whether this theory is corsonable doubt. State v. Maupin, 196 Mo. rect or not, the law (section 5231, R. S. 1909) 164, loc. cit. 175, 176, 93 S. W. 379; and State speaks of instructions, and it is self-evident v. Dudley, 245 Mo. 177, loc. cit. 184, 149 S. that the directions of the court can be more W. 449. The doctrine that a defendant is readily understood where the different subentitled to an instruction directing the jury jects discussed are divided into separate inthat, unless his guilt is proven beyond a rea-structions, or separate paragraphs of the same instruction. sonable doubt, the jury shall give him the benefit of such doubt and acquit him is so interwoven in our jurisprudence that it has become an essential element of law in every criminal case. The defendant is just as much entitled to this instruction as he is to a trial by jury, for, if the court may direct a jury to convict a defendant, then the constitutional right to a trial by jury would amount to little or nothing. In discussing this point in the case of State v. Gonce, 79 Mo. 600, Ewing, J., said:

*

"That part of the instruction as to a reasonable doubt is usually asked and given on the part of the state, even though it may appear to the court there can be no grounds for a reasonable doubt; yet the accused must have the opinion of the triers of the fact upon that question. This instruction should have been given for the defendant, and the court committed error in refusing it."

On this point also see State v. Fannon, 158 Mo. 149, 59 S. W. 75, and State v. Gullette, 121 Mo. 447, loc. cit. 458, 26 S. W. 354.

[3] When a defendant is entitled to an instruction limiting or modifying the effect of evidence which has been legally introduced,

manner

The instruction now in judgment and before quoted blended the subjects of good character and reasonable doubt in such a as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant's guilt. The court should have unequivocally told the jury that the burden of proving defendant guilty beyond a reasonable doubt rested upon the state, and that, if they entertained a reasonable doubt of defendant's guilt, they should give him the benefit of such doubt and acquit him. For the error of the court in omitting to give a correct instruction on the doctrine of reasonable doubt, its judgment must be reversed.

II. Motion for New Trial.

[5] The learned Attorney General insists that, even if the instructions as given do not properly declare the law on the subject of reasonable doubt, the error was not properly preserved by defendant, as he did not, at the trial, specifically except to the failure of the court to instruct on that point.

ing of the decision of this court in the case of State v. Conway, 241 Mo. 271, 145 S. W. 441. The only proposition of law announced in the Conway Case about which the writer has any misgivings is expressed in the following language:

"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."

ner as in civil cases. This is the general law as prescribed by section 5245, supra, and applies to the saving of exceptions to all errors where some other rule of law is not specifically applicable.

It is axiomatic that where a statute deals only with one phase of a subject, and that subject is also governed by a general law, the provisions of the statute which deal only with one phase of the subject will prevail over the general law, in so far as there is conflict between such statutes. Lewis' Sutherland, Statutory Construction (2d Ed.) p. 532; State v. Railroad, 239 Mo. loc. cit. 281, 143 S. W. 785; Folk v. St. Louis, 250 Mo. 116, loc. cit. 136, 157 S. W. 71.

My reason for doubting the correctness of the foregoing pronouncement is that section 5231, R. S. 1909, says that a failure to give It is apparent that prior to 1901 it was such instructions as are necessary for the in- the duty of a defendant to suggest to the formation of juries in giving their verdict court the giving of such instructions as it in felony cases "shall be good cause when had not of its own motion given. It is also the defendant is found guilty for setting equally apparent that the General Assembly, aside the verdict of the jury and granting a in its zeal to force the courts to accord a full new trial." This court does not set aside and fair trial to persons accused of felonies, verdicts and grant new trials on appeal, ex-removed from the defendant the burden of cept as an incident to reversing judgments aiding the court in preparing instructions, upon which such verdicts are predicated. and permits him to remain silent on the subTherefore, in my opinion, the words from ject of instructions, if the evidence raises no said section 5231, supra, which we have itali- collateral issue. cized, pertain and refer exclusively to the procedure in trial courts, and as the law requires motions for new trial to be specific (section 5285, R. S. 1909), it becomes the duty of a defendant convicted of a felony to call the trial court's attention to the specific points upon which it has neglected to give proper instructions.

III. Exceptions.

The contention of the Attorney General that a defendant must at the trial, and before the cause is submitted to the jury, make or save specific exceptions to the action of the court in failing to instruct on the points which have by the court been omittted would be equivalent to placing upon the defendant the duty of informing the trial court of the point of law upon which it had failed to instruct. This the law does not contemplate.

[6] Regarding the further contention of Laws relating to crimes and criminal prothe learned Attorney General that the cedure are liberally construed in favor of the Conway Case, supra, is erroneous, in that it defendant, and strictly construed against the enables a defendant to review in this court state, and I cannot bring myself to believe the failure of the trial court to give neces- that the lawmakers would intentionally resary instructions, notwithstanding such de- lieve a defendant of the duty of requesting fendant has not excepted to such failure at certain instructions, and at the same time the time other instructions were given, and leave him under obligation to specifically exhas raised the point for the first time in his cept to the omission of the very instructions motion for new trial, we will say that this which he is not under obligation to request. very issue received a most thorough consider- Putting it in a little plainer language, secation when the opinion in the Conway Case tion 5231, supra, having specifically relieved was prepared. While section 2081, R. S. defendant of the duty to request certain nec1909, was not mentioned in that opinion, it essary instructions, by the same token rewas in fact considered, and also the statutes lieves him of the duty of suggesting the givof other states similar in form to our own, ing of such instructions. The position asas well as the constructions that have been sumed by the Attorney General calls for a placed upon such foreign statutes. The opin-reversal of this rule of construction, and reion in the Conway Case was held up for some weeks, and the whole subject was exhaustively investigated by each member of this division of the court. The opinion prepared by Judge Kennish, who, on account of his wide experience, pre-eminent ability, and judicial acumen, was rully equipped to weigh the matter from every conceivable point of view, is entitled to great weight.

quires a defendant to speak when the instructions are given, notwithstanding the statute clearly contemplates that he may remain silent at that important moment and yet reserve his right to secure a new trial if any necessary declarations of law are omitted by the court.

The Attorney General calls our attention to section 2081 of the Civil Code, R. S. 1909, which says that:

We quite agree with the Attorney General that errors occurring in the trial of criminal "No exceptions shall be taken in an appeal or

It was well understood when the opinion in the Conway Case was written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Espenschied, 212 Mo. 215, loc. cit. 223, 110 S. W. 1072; State v. Goldby, 215 Mo. 48, loc. cit. 57, 114 S. W. 500; State v. Wilson, 225 Mo. 503, loc. cit. 518, 519, 125 S. W. 479; and State v. Tucker, 232 Mo. 1, loc. cit. 15, 133 S. W. 27. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited, they are expressly overruled. To go back just a little ways and pick up For the failure of the trial court to prop- the thread of the argument, it may be said to erly instruct the jury on the question of rea-be so well settled in our practice as to be funsonable doubt, its judgment is reversed, and damental that matters of exception can only

and cases cited, supra; State v. Gordon, 196 Mo. 185, 95 S. W. 420. Likewise we held, erroneously, I think, that no valid objection to the failure of the court to instruct "upon all of the law in the case" would avail, unless defendant specifically embraced in his ob

which the instructions given by the court were lacking. State v. Barnett, 203 Mo. 658, 102 S. W. 506; State v. Weatherman, 202 Mo. 6, 100 S. W. 482.

alive for appellate review by a motion for a new trial. State v. Libby, 203 Mo. 596, 102 S. W. 641. Likewise it is well settled that instructions given or refused, or the failure or neglect to give proper instructions in a criminal case, are pure matters of exception, and can be preserved for review only by ex-jection and exception the precise point in ceptions, and by incorporating them into a bill of exceptions. State v. De Mosse, 98 Mo. loc. cit. 344, 11 S. W. 731; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 It will be noted, therefore, upon an exMo. 310; State v. McDonald, 85 Mo. 543; amination of the cases that, when the amendState v. West, 157 Mo. 309, 57 S. W. 1071; ment of 1901 was made, this court was uniState v. Huff, 161 Mo. 459, 61 S. W. 900, 1104. formly requiring timely exceptions touching No one will contend that what we call for instructions as a condition precedent to reconvenience the "record proper" embraces in- view. It cannot, I think, be successfully constructions given in a case, either criminal or tended that the Legislature, merely by the civil. It seems to me that it is utterly impos- addition of the words "whether requested or sible to take the view that instructions pre- not," either specifically or impliedly abrogatserve themselves in the record, without ex- ed the necessity for such exceptions. The ceptions made and saved thereto, unless we Legislature had an opportunity of so saying say that in a criminal case instructions are a in express words when they amended this part of the record proper. It is fundamental statute in 1901. Since they failed to say it and manifest that they are not. Without a either expressly or by far-fetched implicaproper bill of exceptions, kept alive by a tion, we ought not to say it for them. A caresufficient motion for a new trial, neither this ful reading of the clause under discussion court nor any other appellate court, where will show that while the failure to instruct the common law prevails, would ever for a upon all questions of law arising in the case moment consider error arising upon an in- and necessary for the information of the struction, unless a plain statute so command- jury, and upon the subjects of good character ed. This court, long prior to the amendment and reasonable doubt, whenever necessary, of 1901 and the addition of the provision that is a good cause for setting aside the verdict a request for instructions on the matters of the jury and for granting a new trial, it is therein specified should no longer be neces- not said in that clause that it is good cause sary, had held that exceptions to instructions or any cause for our reversing the case and must be preserved in order to make objec- remanding it. This view is suggested in the tions touching them reviewable upon appeal, learned opinion herein by Judge BROWN. as an absolute condition precedent, without This court, in such a case as this, is but a which no review here could be obtained. | court of errors, and, as Judge BROWN well This court, from 1901 until the case of State v. Conway, 241 Mo. 271, 145 S. W. 441, had uniformly so held. It had also held likewise from the very beginning up to the date of the amendment of 1901. No well-founded doubt through all the years, until the Conway Case was decided, ever troubled this court upon this question, and we uniformly refused to take heed of objections in any wise affecting instructions when such objections were urged here, unless they were preserved in a bill of exceptions, with specific objections and exceptions urged thereto, which bill of exceptions and specific objections and exceptions to the instructions themselves were kept alive by a sufficient and timely motion for a new trial. State v. Grimes, 101 Mo. 188, 13 S. W. 956; State v. Patrick, 107 Mo. 147, 17 S. W. 666; State v. Inks, 135 Mo. 678, 37 S. W. 942; State v. Nelson, .225 Mo. 551, 125 S. W. 505; State v. Kretschmar, 232 Mo. 29, 133 S. W. 16; State v. Tucker, 232 Mo. 1, 133 S. W. 27; State v. Urspruch, 191 Mo. 43, 90 S. W. 451; State v. Sykes, 154 S. W. 1134; State v. Finley, 193 Mo. 202, 91 S. W, 942; State v. Harris, 199 Mo. 716, 98 S. W. 457; State v. Jones, 191 Mo. 653, 90 S. W. 465; State v. Morgan,

says, we have neither the power of setting aside verdicts nor of granting new trials. We can only order the trial court to do these things. This view still leaves us in a case like this a court of errors, and we have formulated by our decisions, or the Legislature has formulated for us in statutes enacted by it, certain rules by which the errors urged before us are preserved for our review. I cannot read in the clause of section 5231 under discussion any intent whatever on the part of the Legislature to change in any wise any of these general rules by which objections to instructions are preserved for review. The amendment of 1901 merely changed the law so as to render unnecessary any request for an instruction upon any and "all questions of law arising in the case, which are necessary for their [the jury's] information in giving their verdict," including reasonable doubt and, when necessary, good character. As to these matters, the trial court had put upon him the duty of instructing sua sponte correctly upon the law. If he failed to do so, or if he erred in so doing, it was his duty to set aside the verdict and grant defendant a new trial. If he failed to so instruct, and