after stating the case. It is by no means clear that, taking the testimony of the witnesses introduced by the State to be true, it did more than raise a suspicion of the defendants’ guilt. The Attorney-General, with his uniform candor, conceded that the charge of the Judge, in regard to the manner in which the jury should consider the testimony of the defendants in their own behalf, was not in accordance with the decisions of this Court. We well understand that it is often difficult for the Court to avoid the use of expressions, in charging the jury, which are, under a critical examination, entirely free from objection. We would not grant a new trial for such cause unless it clearly, or at least reasonably, appeared that the language used was calculated to prejudice the defendant or mislead the jury. It is clear that, in stating the contentions or theories of the State and defendants, the Judge should state only such as are supported by some evidence. It is well settled by numerous cases in this Court that an instruction which involves a theory, in support of which there is no evidence, should not be given. It would be an invitation to the jury to speculate upon possible theories *652and base tbeir verdict on such speculation rather than upon the evidence. We do not discover any testimony upon which to base the theory that the defendants concealed themselves in the bushes near the public highway to watch the approach of the prosecutor. There is no evidence that there were any bushes on the side of the road. The prosecutor said: “It was a clear, open space.” The form of expression adopted by the Judge was, we think, calculated to prejudice the defendants; it conveys to the mind the impression that the Judge thought that it was incumbent upon the defendants to account for themselves and explain their movements during the day.
In regard to the second exception: In State v. McDowell, 129 N. C., 523, 532, the Court instructed the jury to “scrutinize the evidence of the prisoner’s relations with great caution, considering their interest in the result of the verdict, and after so considering the jury will give it such weight as they may deem proper.” This was held by this Court to be erroneous, following the rule laid down in State v. Collins, 118 N. C., 1203.
In State v. Holloway, 117 N. C., 730, the instruction was that the jury “had a right to scrutinize the testimony of the defendants and receive it with grains of allowance on account of their interest in the event of the action.” This upon exception was held erroneous, the Gourt saying that “This charge is capable of misleading the jury into the impression or belief that the evidence of interested parties is to be to some extent discredited, although the jury may think the witness is honest and has told the truth. His Honor should have gone further and explained to the jury, after having called their attention to the interested relation of the witness, that if they believed the witness to be credible they should give to his testimony the same weight as other evidence of other witnesses.” A charge conforming to this rule, in State v. Byers, *653100 N. C., 512, was approved by this Court; also in State v. Boon, 82 N. C., 637.
In State v. Lee, 121 N. C., 584, this Court disapproved the following “strong and significant language”: “The wife is a competent witness in behalf of her husband, but in view of the close relationship between them, and the cloud of suspicion cast upon her testimony, the law says the jury should scrutinize her testimony with great severity.”
In State v. Apple, 121 N. C., 584, the Court approved the instruction to the jury: “It was their duty to scrutinize the testimony of near relations, but they could not reject it on that account, and that, after thus scrutinizing their testimony, if they believed they had sworn the truth they should give it the same weight as if they were not related to the defendant.”
His Honor’s instruction upon this point is not in accord with the rule laid down by this Court.
For the error pointed out the defendants are entitled to a New trial.