After an examination of the record, the conclusion is reached that the confession of error of the Attorney General should be sustained. *Page 440
While it is not necessary for the trial court to instruct on some theory of the law not supported by the evidence (Newby v. State, 17 Okla. Cr. 291, 188 P. 124), it is nevertheless incumbent on the trial court to give, and the defendant has a right to have, when requested, an affirmative instruction to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case and would, if believed, constitute ground for acquittal. Peyton v. State, 16 Okla. Cr. 410, 183 P. 639; Crittenden v. State, 13 Okla. Cr. 351, 164 P. 675, and cases cited. An examination of the testimony of the defendant discloses a case of self-defense based on apparent danger to his life. The defendant requested an instruction on this issue. The trial court refused to give the requested instruction and failed to give any instruction or instructions whatever on the issue of self-defense. Under such circumstances, the refusal to give the requested instruction or one other covering this issue was error, and in this case prejudicial to the rights of this defendant, as it deprived him of consideration by the jury of the only defense relied upon for an acquittal.
Whether the defendant believed, at the time he shot the prosecuting witness, that he was in imminent danger of death or great bodily harm at the hands of the prosecuting witness, and that it was necessary to employ the force used to prevent such injury, and whether the defendant under the circumstances of this case had reasonable grounds for such belief, were all questions of fact for the jury under proper instructions of the court as to the law of apparent self-defense.
The question is not how much evidence there was on the issue of self-defense, nor does the court believe such evidence, but is there any evidence tending to support such issue? If there is, it is the duty of the trial court to submit such issue to the jury and instruct the jury on the law applicable hereto *Page 441 if found to be true, although the court may disbelieve it. Beard v. U.S., 158 U.S. 550, 15 S.Ct. 962, 39 L.Ed. 1086. The refusal of the trial court to submit such issue in this case after request by the defendant to do so is held to be reversible error.
The defendant introduced some witnesses and offered to prove by them that the prosecuting witness had the general reputation in the community in which he lived, prior to and at the time of the difficulty between him and defendant, of being a violent, quarrelsome, and turbulent man, and also that this general reputation was known to the defendant. The court excluded this proffered testimony. This, too, was error prejudicial to defendant.
The remarks of the specially employed counsel assisting in the prosecution (quoted at length in the Attorney General's confession of error,) tended to aggravate the error of the trial court in refusing to submit the issue of self-defense.
For all of these apparently prejudicial errors, the judgment is reversed, and the cause remanded to the district court of Marshall county, with instructions to grant the defendant a new trial and for further proceedings not inconsistent with this opinion.
BESSEY and DOYLE, JJ., concur.