In its opinion on application for rehearing the Court of Appeals held the giving of charge 1 at the request of the state was error to reverse — this upon the ground that the charge fails to base or hypothesize the jury's conclusion upon belief "from the evidence." We have heretofore decided that trial courts may without error refuse such charges (Davis v. State,
Error, in the opinion of the Court of Appeals, is also predicated of the trial court's refusal of charges 2, 3, and 15, requested by defendant. We assume that there was a phase of the evidence calling for a correct statement to the jury of the general rule of law embodied in these charges, for similar charges were given in the trial court, and otherwise the question as to the charges now under discussion would have been dismissed from consideration as abstract. On the authority cited first above, error cannot be predicated of the refusal of charges 2 and 3, for they do not hypothesize the jury's belief as "from the evidence." But the refusal of charge 15 raises a different question, for the hypothesis there is that "the" jury believe from the testimony," etc. The legal proposition sought to be stated in this charge is usually predicated of a "finding" by the jury, and in that form this court has frequently said that it should be given in cases calling for its application. By it the jury are instructed, not that they must disregard the whole testimony of the witness in the event hypothesized, but only that they may do so — have the legal right to do so. McClellan v. State,
The conclusion is that the Court of Appeals erred in its consideration of the charges under discussion, and that, as for any question made upon these charges, the judgment of the trial court should have been affirmed.
Writ granted; judgment of the Court of Appeals reversed, and cause remanded to that court for further proceedings in accordance with this opinion.
All the Justices concur.