dissenting separately.
There was some evidence that, at the time the stolen goods were delivered at the store of defendant, he was not present and had no knowledge that they had been placed there until his return in the evening, when his wife informed him that she had given permission to have them left there temporarily by the person who had brought them and made the request that they be so left. With the weight of this evidence we have nothing to do. It is well settled by this and all other courts in this country that a litigant, whether in a civil or criminal case, has the rig'kt to have the jury instructed upon the issues and theories of each party, leaving the jury to decide the questions of fact. Upon the trial the defendant asked the court to instruct the jury: “Although the wife may have known or thought the goods, at the time she bought them, were stolen, this would not be sufficient to justify you in returning a verdict of guilty, though the defendant may have passively consented to what his wife had done without taking any active part in the matter.” The instruction was refused, and no instruction given covering the proposition sought to be presented. We cannot say much in favor of the whole instruction as asked, but it is very clear that it presented to the court the well and long-established rule that the husband is not liable criminally for the acts of the wife in which he did not participate. I think the instruction should have been given (modified, if thought necessary), and to fail to do so was prejudicial and reversible error.