Odle v. State , 1883 Tex. Crim. App. LEXIS 59 ( 1883 )

Hurt, J.

The appellant was convicted, as a principal, in the robbery of Joseph Bunn.

Two questions are presented which we think require discussion. They are:

First. Did the court err in submitting to the jury a charge upon the subject of keeping watch, etc. ?

Second. Is the verdict of the jury supported by the evidence?

If there be testimony tending to establish a certain theory within range of the charge contained in the indictment, the court should submit to the jury, by proper instructions, the law applicable to such theory. This should be done whether favorable to the State or the defendant.

It does not follow, however, that because there was evidence of sufficient force, or strength, to require a charge upon the theory presented by such evidence, that the court should refuse a new trial upon the insufficiency of the evidence. But if the evidence is of such meagre and doubtful character as that the court would not hesitate to set aside the verdict, it would be the better practice not to charge the law applicable to the theory so feebly presented by the evidence. If a charge has been given upon a theory not sufficiently supported by the evidence to warrant a conviction thereon, the court ecu, and should, redress the wrong by granting a new trial.

The observations apply to theories of the prosecution, it being a well settled rule “that if there be any evidence tending to present a theory for the defense, the law applicable thereto must. be given in the charge.” We are of the opinion, however, that the court did not err in submitting this theory of the State to the jury.

Third. Does the evidence support the verdict? While it is true that the statement of facts shows that the evidence might have been made stronger by showing that three horses were tied at the point at which they were found to have been hitched, still we are of the opinion that the verdict- is supported by the evidence. (The Reporters will give the evidence.)

The judgment is affirmed.

Affirmed.

Opinion delivered March 21, 1883.