Ammons v. State

(after stating the facts as above). After an examination of the record, the conclusion is reached that the confession of error of the Attorney General should be sustained.

While it is not necessary for the trial court to instruct on some theory of the law not supported by the evidence (Newby v. State, 17 Okla. Cr. 291, 188 P. 124), it is nevertheless incumbent on the trial court to give, and the defendant has a right to have, when requested, an affirmative instruction to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material…