This case was carefully considered by each member of this court upon original presentation, and nothing new appears in the State's motion for a rehearing. We have often asserted the right of the accused to an affirmative presentation of his defensive *Page 666 theory, if any, raised by the evidence on the trial, and that a mere negative presentation of such theory in connection with the affirmative charge in favor of the State applying the law to the facts, will not suffice. We further are of opinion that the testimony given by witness Calvert relative to a statement made by appellant, which is denied by the latter, is not sufficient affirmative evidence establishing the fact of malice on the part of appellant, to remove the issue of malice vel non from that of being a matter of dispute on the trial. At the time of the statement claimed by Mr. Calvert to have been made by appellant, the child was not born and such statement is easily susceptible of the proposition that the thing most had in mind by appellant was the preservation of the good name of the prospective mother of the child, and that said statement as same related to the child was of but secondary importance in the mind of the appellant.
The matters urged in the motion as of weight against our conclusion that under the facts a charge submitting the issue of accomplice testimony as applicable to the testimony of Mrs. Keahey, are none of them admitted facts but all are combatted by the accused. In such condition of the record it was the duty of the trial court to submit the law applicable and permit the jury to solve the disputed issues of fact under full and complete instructions as to the law.
Being of opinion that the case was rightly decided upon the original hearing, the State's motion for rehearing will be overruled.
Overruled.
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