Moloney v. Boatmen's Bank. gated to competent and experienced builders, provided due care is exercised in making the inspection. [Olson v. Meyer, 46 Neb. 240, 64 N. W. 954, and cases cited supra. V. It is contended that defendant's instruction numbered 7 ignores his duty to brace or secure the wall. It required the jury to find that in suffering such wall to stand, the defendant exercised such care as Instruction 7. an ordinarily prudent person would have exercised under the same or similar circumstances. The jury would clearly understand this to mean the wall as it stood, unbraced and unsecured. This instruction eliminates the vices in an instruction condemned in Orr v. Bradley, supra, and is authorized by the learned opinion. in that case. The other criticisms leveled against this instruction are without merit. Instruction 8. VI. Appellant criticises defendant's instruction numbered 8, (1) that it fails to require the jury to find that the defendant exercised ordinary care; (2 and 3) that it authorized the jury to find that defendant could escape liability by delegating to others not competent to pass on the condition of the wall, its duty of caring for is dangerous premises, and (4) it adopts an incorrect measure of the strength of the wall to justify defendant in permitting it to stand without bracing. A simple reading of the instruction shows that the criticisms are without merit. VII. We do not think that defendant's instruction numbered 9 singles out and gives undue prominence to isolated parts of the evidence, as claimed by appellant. [Meux v. Haller, 179 Mo. App. 466, l. c. 475; O'Malley v. Musick, 191 Mo. App. 405, 1. c. 413.] It is a general instruction. Instruction 9. "Instructions are to enable the jury to understand the law of the case. A few short, pithy and sententious instructions, embodying the law of the case, will always be better understood, and will have more effect on the Moloney v. Boatmen's Bank. triers of the fact, than a long list of instructions, loaded with words, generally so involved that it tends to confuse rather than conduct the jury to a proper conclusion." [State v. Floyd, 15 Mo. 349, 355; Crole v. Thomas, 17 Mo. 329, 332; Talbot v. Mearns, 21 Mo. 427, 431.] "The jury's mind should be focused on, and not diverted from, the issues." [Strother v. Milling Co., 261 Mo., 1. c. 23.] Instruction 11. VIII. The defendant's instruction numbered 11 is criticised in that it permits the defendant to act upon the appearance of the wall instead of requiring him to make careful inspection, and permits him to act on the opinion of a reasonably prudent man instead of a man capable of passing on the condition of the wall. All of the witnesses for the defendant, including the fire chief, Swingley, plaintiff's witness who inspected the wall and testified to its conditions, were competent to give an opinion on the apparent strength and stability of the wall. The jury could not have been misled by this instruction. Anticipated Wind. IX. Instruction numbered 11 is further criticised in that, in determining the condition of the wall, defendant was required to consider only the facts and conditions which existed at the time, and was excused from forecasting the conditions of the weather which were reasonably likely to arise. The instruction refers to the condition of the wall at the time defendant was compelled to act, and to act promptly in view of the appalling conditions. It may be assumed that Whitaker and his co-laborers knew that the weather was an uncertain factor, "that the wind bloweth where it listeth and thou hearest the sound thereof, but canst not tell whence it cometh and whither it goeth." If the wall could not have been braced, or if an attempt to brace it would have been hazardous to the lives of the workmen, what alternative did defendant have other than the plan adopted? A consideration of the weather could Moloney v. Boatmen's Bank. not have suggested a different course of action. If there had been no human bodies in the ruins of the building, and defendant had neglected to pull down the wall without any sufficient reason therefor, and it had toppled over under the force of the wind and injured any one, a very different question would be presented. [Orr v. Bradley, supra.] Error. X. If the instructions did not go far enough in plaintiff's favor, he should have asked for others presenting the theories of the law contended for by him. [Drey v. Doyle, 99 Mo. 459.] The criticisms leveled Imaterial at the defendant's instructions are purely technical. Sections 1276 and 1513, Revised Statutes 1919, forbid the reversal of a judgment for error which does not affect the substantial rights of the adverse party or materially affect the merits of the action. [Honea v. Railroad, 245 Mo. 621, 1. c. 644.] When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial. But when the verdict is manifestly for the right party and a different result could not have been reached by the jury under the law, it should not be disturbed because of such erroneous instruction. [State ex rel. v. Stone, 111 Mo. App. 1. c. 372, and cases cited.] The errors complained of in the admission of improper evidence were not prejudicial. The verdict was for the right party and the judgment is affirmed. All concur. State v. DePriest. THE STATE v. GEORGE DEPRIEST, alias BROWN, Appellant. Division Two, June 23, 1921. 1. APPELLATE PRACTICE: Sufficiency of Evidence. It is not the province of an appellate court to determine the weight of the testimony; in deciding whether a demurrer to the evidence in a criminal case was properly sustained, it searches the record only to the extent of determining whether there was substantial evidence to support the verdict. And judged by this rule, the evidence in this case was amply sufficient to sustain the verdict that defendant was the person who, with gun in hand, robbed the prosecuting witness of thirty dollars or more. 2. EVIDENCE: Refreshing Witness's Memory: Grand Jury Notes. The testimony given before the grand jury by a witness for the State may be handed to him for the purpose of refreshing his memory. 3. ARGUMENT TO JURY: Defendant's Failure to Testify: Comment. It is not permitted to the prosecuting attorney to refer to and criticise defendant's failure to testify; but to say that "there has not been a witness here who says defendant was not" at the place where the robbery was committed, is not to comment on defendant's failure to testify. 4. - Defendant's Reputation: Injected by His Counsel. Where defendant's counsel has in his argument to the jury stated that defendant "comes here with the best of reputation" it is not error for the prosecuting attorney to refute it by replying that no witness "said anything about his reputation," and that, if any witness had said anything about defendant's reputation he too "would have had something to say about his reputation." Such remarks were not comment on defendant's failure to testify, and defendant's reputation being injected into the case by himself, the prosecuting attorney had a right to refute the statement of his counsel that it was "the best," and the court did not err in refusing to discharge the jury because of the refutation made. Appeal from St. Louis City Circuit Court.-Hon. Vital State v. DePriest. John P. Leahy for appellant. (1) The defendant was not proved by the State to be guilty of this specific charge made in the indictment against him, and he was entitled to an acquittal, and his demurrer to the evidence should have been sustained. State v. Howell, 100 Mo. 639; State v. Woolard, 111 Mo. 256. (2) The presence of the defendant at the necessary time and place must be shown as essential to the commission of a crime. If the defendant's evidence is sufficient to raise a reasonable doubt, or if the State's evidence is so defective as to raise a reasonable doubt, or if taking all the evidence on both sides there is a reasonable doubt of the defendant's guilt, he is entitled to an acquittal. State v. Jones, 71 Mo. 594; State v. Howell, 100 Mo. 628; People v. Fong Ah Sing, 64 Cal. 253; State v. Franke, 159 Mo. 535; State v. Hopkirk, 84 Mo. 288; State v. Powers, 130 Mo. 479; State v. Howard, 118 Mo. 140. (3) It is a fundamental principle of the law of circumstantial evidence that each independent fact must be proved in the same satisfactory manner as if the whole issue rested upon that fact. State v. Crabtree, 170 Mo. 654; Com. v. Webster, 5 Cush. 295; 1 Starke, Ev. 510. (4) While the memory of a prosecuting witness may be refreshed by his testimony taken before the grand jury, it cannot be used for the purpose of impeaching him by the State. State v. Patton, 255 Mo. 257. (5) The failure of the defendant to testify cannot be referred to or criticized by the prosecuting attorney. State v. Graves, 95 Mo. 510. (6) A defendant charged with the commission of a crime comes into the court with the presumption of innocence and with a good reputation, and in the absence of evidence showing his reputation to have been bad, it is error on the part of the prosecuting official to state that he could prove his reputation to be bad. State v. Lee, 66 Mo. 165. |