Upon the trial of a criminal case it is not error, in the absence of a request, to fail to charge on a theory presented solely by the statement of the defendant.
DECIDED DECEMBER 5, 1947. The defendant was convicted in the Superior Court of Evans County of cattle stealing. The indictment charged the defendant with having feloniously taken and carried away with intent to steal the same one certain animal of the species known as cattle, and being a red butt-headed cow, of the female sex, weighing approximately 600 pounds, marked two under bits in each ear, and being the personal property of J. K. Durrence, and being of the value of $90. The defendant filed a motion for new trial on the general grounds, which was later amended by adding two special grounds, one of which contended that the evidence was not sufficient to establish the venue, and the other contended that the court erred in failing to charge the jury that, if they believed the contentions of the defendant that he, in good faith and without any intention of violating the law, assisted John Kirkland in butchering the cow in question, actually believing that the cow belonged to Kirkland, they should acquit the defendant. There was no written request for this charge, and the brief of evidence disclosed only the statement of the defendant as supporting this contention. The court overruled the defendant's motion for new trial and on this judgment error is assigned. 1. While the testimony in this case is not identical with that inKicklighter v. State, ante, the defendant in that case and the defendant herein having been jointly indicted and tried separately, the facts are sufficiently parallel to authorize this court to apply to this case what was said in the first headnote and the corresponding division of the opinion in theKicklighter case, except what was there said about the testimony of this defendant as a witness in that case.
The general grounds and the special ground of the amended motion, contending that the evidence was insufficient to establish the venue, are without merit.
2. The theory of the defendant, that he was innocently acting in good faith on the occasion in question, by helping John Kirkland find and kill his cattle at Kirkland's instance and request, is presented solely by the statement of the defendant. It is not error, in the absence of a request, to fail to charge on a *Page 254 theory presented solely by the statement of the defendant. See many cases in the Annotated Code under § 38-415, following the catchword, "Charge." This assignment of error is without merit.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.