September 18, 2005, 14:39
Martin PetersonConverse Application in Jury Charge
It has been said that in submitting a case to a jury, that in applying the law to the facts the court should also submit the converse thereof.
Zybura, 420 S.W.2d at 955. McClung argues
Burns, 473 S.W.2d 19 applies only where there has been no affirmative evidence adduced to rebut the State's theory and that a converse submission should incorporate any facts "made out" in opposition to the State's theory since presentation to the jury of only the State's case in a factual capsule does not accord the defendant the full right to presentation of his defensive theory. But, in my opinion, McClung fails to adequately acknowledge the holdings in
Wilson, 581 S.W.2d at 665,
Hagar, 487 S.W.2d 723 or
Graves, 968 S.W.2d at 388. While I am troubled by the comment in
Moore, 736 S.W.2d at 683 that "it may be said that failure to give such a converse charge is error", I am also troubled when my judge gives a converse charge. Does this represent a problem for anyone else? I think such comments on the weight of the evidence should be eliminated.