(concurring and dissenting):
I concur with the majority opinion that the District Court did not err in giving its instruction on the element of criminal intent, as well as statements in that opinion concerning the prosecutor’s comment on defendant’s failure to take the stand as a witness. But I believe the District Court erred prejudicially (1) in failing to instruct the jury on defendant’s theory of voluntary termination of criminal conduct, and (2) in failing to instruct on the reasonable alternative hypothesis.
Defendant contends that his proposed instruction of the affirmative defense of voluntary termination was in accordance with Section 76-2-307,1 which provides:
It is an affirmative defense to a prosecution in which an actor’s criminal responsibility arises from his own conduct or from being a party to an offense under § 76-2-201 [76-2-202] that prior to the commission of the offense, the actor voluntarily terminated his effort to promote or facilitate its commission and either:
(1) Gave timely warning to the proper law enforcement authorities or the intended victim; or
(2) Wholly deprives his prior efforts of effectiveness in the commission.
After reciting the language of the statute, defendant’s proposed instruction continued:
If you find from the evidence that the defendant, ROBERT D. EAGLE, wholly deprived his prior efforts in the commission of the offense of theft of any effectiveness, then you must find him not guilty of that charge.
The State argues, first, that this instruction was properly refused because it is an inaccurate statement of the law, and properly should have included as a necessary element a finding of voluntary termination on the part of the defendant prior to the commission of the offense, as well as the finding that defendant wholly deprived his prior efforts of effectiveness. While it is true that the proposed instruction is defective in the manner suggested by the State, nevertheless, it is the duty of the Court to instruct the jury on each party’s theories which have support in the evidence. And this defect in the proposed instruction does not relieve the Court from its duty of giving a proper instruction on defendant’s theory when the issue has been brought to the attention of the Court by a specific request therefor,2 though faulty in some respects.
The State further argues, however, that the instruction was properly refused because the evidence showed (1) defendant did not voluntarily terminate his criminal efforts, but rather involuntarily terminated those efforts due to the proximity of the security guard, and (2) that the crime was already complete prior to the time defendant and Myles dropped the suits.
Section 76-2-307 is new in our law and has been reviewed only once by this Court since its enactment in 1973. In the case of State v. Smith, Utah, 571 P.2d 578 (1979), we held that it was not error for the Court to refuse to give an instruction on voluntary termination when the evidence showed that defendant had not taken any action to terminate his efforts prior to the commission of the crime and had not wholly deprived his efforts of effectiveness. There was no evidence which would have justified an instruction on this affirmative defense in the Smith case.
. Here, I believe that reasonable minds could differ with respect to whether defendant’s actions in dropping the suits were voluntary or a result of his fear of apprehension, and that it was a matter for the jury to decide. The security guard did not see defendant and Myles drop the suits. He found the suits in an aisle of the store. The majority opinion states that the two dropped the suits in “apparent realization that their conduct was under observation.” *1216This is a fact which the jury should decide; but as the jury was not instructed thereon we can only speculate on what the jury would have determined under a proper instruction. likewise, the determination of when this crime was complete is a matter for the jury to determine.
Defendant is entitled to have his theory of the case presented to the jury by proper instruction, where there is, as here, sufficient evidence, when reasonably viewed (i. e., some credible, substantial evidence) to present the issue to the jury.3 Inasmuch as the instruction was not given, defendant is entitled to a new trial.
Defendant further argues that the Court erred in refusing his proposed instruction on the reasonable alternative hypothesis which said instruction was:
To warrant you in convicting the defendant of the crime charged in the Information, or of any crime included therein, the evidence must, to your minds, exclude every reasonable hypothesis other than that of guilt of the defendant; that is to say, if after a full and fair consideration and comparison of all the testimony in the case you can reasonably explain the facts in the evidence on any reasonable ground other than the guilt of the defendant, then you must find him not guilty.
Defendant objected to the Court’s refusal of this instruction. The prosecutor joined the defense, and advised the Court that as the State had to rely wholly on circumstantial evidence in this case he felt the instruction should be given. But the Court determined that the eye-witness testimony was direct evidence, and as the evidence was not wholly circumstantial, the instruction should not be given.
The Court’s ruling was in accordance with State v. Romero, Utah, 554 P.2d 216 (1976). Notwithstanding what was said in that case, and in other similar rulings of this Court, I believe a better rule, — a more realistic one — is that this instruction should be given if there is some credible evidence in the record, whether circumstantial, direct, or an admixture of both (as is usually the case), from which the jury may reasonably conclude that defendant’s conduct can be explained on a ground other than guilt.
I believe this case should be reversed and remanded for a new trial.
MAUGHAN, J., concurs in the concurring and dissenting opinion of WILKINS, J.. All statutory references are to Utah Code Ann., 1953, as amended.
. Justice v. Harrison, Okl., 569 P.2d 439 (1977); Billings Leasing Co. v. Payne, Mont., 577 P.2d 386 (1978); Miesen v. Ins. Co. of North America, 1 Wash.App. 185, 460 P.2d 292 (1970).
. Ferguson v. Jongsma, 10 Utah 2d 179, 350 P.2d 404 (1960); Beckstrom v. Williams, 3 Utah 2d 210, 282 P.2d 309 (1955); State v. Valdez, Utah, 604 P.2d 472, 473 (1979).