Referring to the majority opinion, it is clear that, while the appellant, in his testimony, denied his presence at the time the robbery was committed and denied his participation therein, he did not deny *Page 612 that he was a member of the party consisting of Everett, Batchelor, Childress and himself, who left their home on the night of the alleged offense and went to the underpass for the purpose of intercepting persons who were bringing a quantity of whisky to be delivered at or near the underpass mentioned. That he was present and took part in the commission of the robbery is the state's theory, supported by its testimony. It is thought that, if the appellant, as he claims in his testimony, was not a party to the conspiracy to rob the persons who were bringing the whisky by taking from them either the whisky or their money, and that his presence was motived alone by the willingness to aid in apprehending violators of the law, and did not assent or acquiesce in or know of the taking of the money from Rose or McGowan, he would be entitled to an acquittal of the robbery. The appellant's testimony cogently presents the theory that his presence at the underpass and his association with the parties charged with the commission of the robbery was for an innocent purpose; that is to say, he was there to aid an officer of the law in its enforcement. This theory explaining his presence having been put in the record before the jury, his contention that the law required, at his request, an instruction to the jury that, if they believed his affirmative defensive theory, he should be acquitted, is regarded as sound. That such an instruction is necessary to properly protect the rights of the accused in a case where he relies upon the defense of alibi is settled without conflict. See Hunnicutt v. State, 18 Texas App., 498, see page 516; McAfee v. State, 17 Texas App., 131. So, in a burglary case, where there is an issue of consent to the burglary, this court has affirmed the right of the accused to a presentation of the theory in an affirmative manner. See Bird v. State,49 Tex. Crim. 96. So, in a trial for aggravated assault, where there is affirmative testimony presenting the theory of want of intent to injure, the requirement of an affirmative presentation of the defensive theory has been affirmed. See Moody v. State, 52 Tex.Crim. Rep.. Many additional cases might be cited illustrating the principle asserted, namely, when facts appear in the record presenting an affirmative defense, as that term is understood, a charge is incomplete which fails to direct the attention of the jury in a specific manner to the defensive theory. See McCall v. State, 14 Texas App., 353; Regittano v. State, 96 Tex.Crim. Rep..
The conclusion above stated is emphasized by the refusal of the court to give to the jury, in substance or in effect, appellant's *Page 613 special charge No. 5, in which it was sought to have the jury instructed that, if from the evidence it was believed that W. W. Batcheler was a commissioned deputy sheriff of Ellis county, and had requested the appellant to assist him in making the arrest of persons who were violating the law, the appellant had a right to be present and by all lawful means assist in arresting persons who were violating the liquor law. Touching the right of the appellant to be present in accord with his theory, namely, that he was acting under deputation from a deputy sheriff, the charge of the court is silent.
In failing to give to the jury an instruction embracing the theory and contention of the appellant, as supported by his testimony, the opinion is expressed that the court was in error of a nature which should bring about a reversal of the judgment of conviction.
The motion for rehearing should be granted.