Roberts v. State

The jury should have been instructed that it could find the appellant guilty of theft by receiving. He sat before them wearing the purportedly stolen earring. It makes no difference which side offers evidence; the jury should consider it all. Theft by receiving was no more inconsistent with appellant’s proof than was burglary. He contended he was guilty of neither. How can he be less “not guilty” of receiving than of burglary? Why then should an instruction on burglary have been given? It was just as inconsistent with appellant’s own proof as an instruction on theft by receiving.

Have we…