Cassoday, J.
The defendant was tried and convicted upon the charge of having received a portion of the money named, knowing that it had been stolen. He then brought that case to this court on writ of error, and urged a reversal in part upon the ground that the evidence was insufficient to support the verdict. The judgment was affirmed, and so it was held that the evidence was sufficient to sustain the conviction. Jenkins v. State, 62 Wis. 49" court="Wis." date_filed="1885-01-13" href="https://app.midpage.ai/document/jenkins-v-state-6604591?utm_source=webapp" opinion_id="6604591">62 Wis. 49. Counsel for the plaintiff seems to think that the opinion of Mr. Justice Lyon in the criminal case required the trial court, upon similar evidence in this case, to direct a verdict for the plaintiff. This contention seems to be based upon a misconception of the functions of both court and jury. It was the province of the jury to pass upon the facts. They have done so. If. there is no intervening error, the verdict will not be disturbed. The evidence in the record before us is quite similar to the evidence in the criminal case. Its nature and character are sufficiently indicated in the report of that case, to which reference is made. It is enough here to say that the evidence is wholly circumstantial. Such evidence generally presents to the jpry the duty of balancing probabilities. In such cases the certitude of the verdict is rarely susceptible of demonstration.
As applied to such evidence we are convinced that the *545instructions given naturally tended to mislead the jury, especially the portion to which exception was taken. The fact that most of the instructions were prepared by and given at the request of the defendant’s attorney did not render them any less likely to mislead. They gave the defendant’s side of the case with repetition and emphasis, and only referred to the plaintiff’s side by way of negativing certain portions of. its evidence. True, the plaintiff’s counsel were at liberty to present counter-instructions covering its side of the case, but they did not. Ordinarily, where the charge of the court does not cover all phases of the case, counsel is bound to call the attention of the court to the omitted portion by an appropriate request, or be precluded from making it available as error. But, even then, the instructions given must not tend to mislead the jury. In the case before us, under the instructions given, the jury might well have supposed that the plaintiff, in order to recover, was bound to prove before them in court by direct and positive testimony “ that the defendant actually did take that money from its safe, or that, he actually obtained and improperly kept that same identical money, or some part of it.”
Since the evidence was all circumstantial, it is obvious that neither the act of taking, obtaining, keeping, nor identifying was proved by direct and positive testimony. A similar instruction had previously been given, but in a less objectionable form. “ Circumstantial evidence is defined to be where the proof applies immediately to collateral facts supposed to have a connection, near or remote, with the fact in controversy.” Elerhardt v. Sanger, 51 Wis. 78; Bouck v. Enos, 61 Wis. 663, 664. In such a case it is “ obviously misleading to separate each collateral fact going to make up the chain of circumstances which would, together, thus force conviction of the principal fact in controversy, and then with qualification instruct the jury that such isolated *546collateral fact was not sufficient of itself to establish, such principal fact.” Ibid. Here that was clone as to certain isolated collateral facts, without any instruction as to the nature or effect of circumstantial evidence, or whether the jury were at liberty to find for the plaintiff upon such circumstantial evidence. By thus entirely ignoring the plaintiff’s case, based as it was wholly upon circumstantial evidence, except to weaken certain features of it, and then giving undue prominence to the fact of actually, taking, actually obtaining, and improperly keeping that same identical money, it is easy to perceive how the jury may have been induced to believe that there was no such testimony in the case as would support a verdict for the plaintiff. It is very much as though the jury had been instructed that they must be so convinced beyond a reasonable doubt. Partial and one-sided instructions, tending to secure the result indicated, are certainly erroneous. Instructions to the jury should cover the whole case and take in all the testimony. First Nat. Bank v. Currie, 44 Mo. 91" court="Mo." date_filed="1869-03-15" href="https://app.midpage.ai/document/first-national-bank-v-currie-8002571?utm_source=webapp" opinion_id="8002571">44 Mo. 91; Ellis v. McPike, 50 Mo. 574" court="Mo." date_filed="1872-10-15" href="https://app.midpage.ai/document/ellis-v-mcpike-8003724?utm_source=webapp" opinion_id="8003724">50 Mo. 574; Raysdon v. Trumbo, 52 Mo. 35" court="Mo." date_filed="1873-02-15" href="https://app.midpage.ai/document/raysdon-v-trumbo-8003913?utm_source=webapp" opinion_id="8003913">52 Mo. 35; Jones v. Jones, 57 Mo. 138" court="Mo." date_filed="1874-07-15" href="https://app.midpage.ai/document/jones-v-jones-8004605?utm_source=webapp" opinion_id="8004605">57 Mo. 138; Calef v. Thomas, 81 Ill. 479; Chicago P. & P. Co. v. Tilton, 87 Ill. 547" court="Ill." date_filed="1877-09-15" href="https://app.midpage.ai/document/chicago-packing--provision-co-v-tilton-6959923?utm_source=webapp" opinion_id="6959923">87 Ill. 547.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.