State v. Hembree and Jacobs

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…