SIMMS, Justice:
Norman Ahrend and The Ahrend Company (TAC), a corporation operated by Ah-rend, defendants below, appeal judgment rendered against them and in favor of Three “M” Investments, Inc. (Three “M”) on the grounds that the trial court erred when it disallowed evidence of a witness’s conviction, prohibited leading questions, refused to give requested jury instructions, and used certain instructions.
The Court of Appeals affirmed finding no error by the trial court in its evidentiary decisions. However, the Court of Appeals refused to address appellants’ jury instruction propositions. Certiorari was granted, and we find the trial court did not err. The opinion of the Court of Appeals is vacated, and the judgment of the district court is affirmed. The material facts are undisputed.
Three “M” entered into a contract with TAC to sell twelve residential lots of property for $186,600.00 to the latter. C.J. French, an officer of Three “M”, negotiated the terms of the contract for Three “M” and Ahrend negotiated for TAC. TAC agreed to pay the purchase price by giving a certain sum of money on the resale of the lots, by assigning a note, and by conveying other property to Three “M”.
Three “M” conveyed the lots as agreed, but TAC failed to fulfill its obligations under the contract. Three “M” filed an action against Ahrend and TAC for fraud, and later amended it to include causes of action for breach of contract and malicious breach of contract. After trial, the jury returned a verdict in favor of Three “M”, [1326]*1326awarding $226,912.50 in actual damages and $75,000.00 in punitive damages. The trial court entered judgment accordingly.
Ahrend and TAC first assert error in the trial court’s refusal to allow them to impeach French’s testimony in the trial by introducing evidence of French’s previous criminal conviction. They assert the evidence is admissible under 12 O.S.1981, § 2609(A) as the conviction was one for income tax evasion, clearly an offense involving “dishonesty or false statement.” The trial court disallowed the evidence under § 2609(B) because the conviction was over ten years old. Section 2609(B) reads, in pertinent part:
“Evidence of a conviction under this section is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect....”
The witness was released from prison on July 19, 1978, and Ahrend and TAC argue that the ten year period is to be measured to the date on which the lawsuit is filed, in this case, August 15, 1986. Under their theory, the ten year period had not run. They cite no authority to support their view.
Conversely, Three “M” argues that the date from which the period should be measured is the date of the witness’s testimony at trial. French testified in early October of 1988, over ten years after being released from prison. This Court has not had occasion to determine whether the ten-year period runs to the trial date or the date upon which the lawsuit was filed. However, the Oklahoma Court of Criminal Appeals has construed § 2609(B). Moreover, § 2609(B) was adopted from Federal Rule of Evidence 609(b) and is almost identical to it, so federal cases construing the federal rule are instructive.
Section 2609 allows evidence of prior convictions for one purpose, to attack the credibility of the witness. Croney v. State, 748 P.2d 34, 35 (Okla.Crim.App.1987); 1 Okla. Evid. (Whinery) § 2609, p. 208; United States v. Cathey, 591 F.2d 268, 275 (5th Cir.1979) (construing Fed.R.Evid. 609(b)). The time at which a witness’s credibility would need to be questioned is when that witness is testifying, not when the lawsuit is filed. Professor Weinstein addressed this issue and concluded:
“Some uncertainty has been expressed as to whether the applicable period should be measured up to the date when the trial commences, or the witness testifies, or the date of the charged crime. The time of testimony is most appropriate since the jury must determine credibility at that moment.” J. Weinstein & M. Berger, 3 Weinstein’s Evidence 11 609[07], at 609-74 (1991).
In Cathey, supra, the court determined that the trial court abused its discretion under Fed.R. of Evid. 609(b) when it allowed a sixteen year old conviction into evidence to impeach the defendant in a criminal trial. The appellate court held that sixteen years had passed from the witness’s release from prison to the date the witness was “called to testify.” 591 F.2d at 274.
In analyzing the situation, the court noted in a caveat that:
“... since the concern is the defendant's credibility when he téstifies the correct point from which to measure backwards in time may be the date when he testifies rather than the date when the trial commences, which in a protracted trial might be considerably earlier.”
591 F.2d at 274 n. 13. Thus, under Cathey, the earliest date for the time period to end is the commencement of trial with the date of testimony possibly more appropriate when the trial is protracted.
In ruling that a conviction less than ten years old was admissible, the Third Circuit stated:
[1327]*1327“Normally such evidence is admissible only if either the conviction or the witness’ release from prison occurred within 10 years of the trial"
United States v. Hans, 738 F.2d 88 (3rd Cir.1984) (Emphasis added). See also, United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986) (evidence of a prior conviction was admissible in a trial which commenced within ten years of the defendant/witness’s release from confinement); United States v. Holmes, 822 F.2d 802 (8th Cir.1987) (trial court did not abuse discretion under Fed.R.Evid. 609(b) in admitting impeachment evidence of four convictions where each of the convictions were over twelve years old “at the time of the trial”).
Thus, the only authority we have found which has considered the time period issue concluded that the ten-year period does not elapse any earlier than the date the trial commences. This conclusion is supported by the intent of § 2609, namely, to allow evidence of a witness’s prior convictions before the jury so that the jury can assess the credibility of the witness at the time they are testifying. Hence, French’s conviction was over ten years old at the time relevant herein,1
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SIMMS, Justice:
Norman Ahrend and The Ahrend Company (TAC), a corporation operated by Ah-rend, defendants below, appeal judgment rendered against them and in favor of Three “M” Investments, Inc. (Three “M”) on the grounds that the trial court erred when it disallowed evidence of a witness’s conviction, prohibited leading questions, refused to give requested jury instructions, and used certain instructions.
The Court of Appeals affirmed finding no error by the trial court in its evidentiary decisions. However, the Court of Appeals refused to address appellants’ jury instruction propositions. Certiorari was granted, and we find the trial court did not err. The opinion of the Court of Appeals is vacated, and the judgment of the district court is affirmed. The material facts are undisputed.
Three “M” entered into a contract with TAC to sell twelve residential lots of property for $186,600.00 to the latter. C.J. French, an officer of Three “M”, negotiated the terms of the contract for Three “M” and Ahrend negotiated for TAC. TAC agreed to pay the purchase price by giving a certain sum of money on the resale of the lots, by assigning a note, and by conveying other property to Three “M”.
Three “M” conveyed the lots as agreed, but TAC failed to fulfill its obligations under the contract. Three “M” filed an action against Ahrend and TAC for fraud, and later amended it to include causes of action for breach of contract and malicious breach of contract. After trial, the jury returned a verdict in favor of Three “M”, [1326]*1326awarding $226,912.50 in actual damages and $75,000.00 in punitive damages. The trial court entered judgment accordingly.
Ahrend and TAC first assert error in the trial court’s refusal to allow them to impeach French’s testimony in the trial by introducing evidence of French’s previous criminal conviction. They assert the evidence is admissible under 12 O.S.1981, § 2609(A) as the conviction was one for income tax evasion, clearly an offense involving “dishonesty or false statement.” The trial court disallowed the evidence under § 2609(B) because the conviction was over ten years old. Section 2609(B) reads, in pertinent part:
“Evidence of a conviction under this section is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect....”
The witness was released from prison on July 19, 1978, and Ahrend and TAC argue that the ten year period is to be measured to the date on which the lawsuit is filed, in this case, August 15, 1986. Under their theory, the ten year period had not run. They cite no authority to support their view.
Conversely, Three “M” argues that the date from which the period should be measured is the date of the witness’s testimony at trial. French testified in early October of 1988, over ten years after being released from prison. This Court has not had occasion to determine whether the ten-year period runs to the trial date or the date upon which the lawsuit was filed. However, the Oklahoma Court of Criminal Appeals has construed § 2609(B). Moreover, § 2609(B) was adopted from Federal Rule of Evidence 609(b) and is almost identical to it, so federal cases construing the federal rule are instructive.
Section 2609 allows evidence of prior convictions for one purpose, to attack the credibility of the witness. Croney v. State, 748 P.2d 34, 35 (Okla.Crim.App.1987); 1 Okla. Evid. (Whinery) § 2609, p. 208; United States v. Cathey, 591 F.2d 268, 275 (5th Cir.1979) (construing Fed.R.Evid. 609(b)). The time at which a witness’s credibility would need to be questioned is when that witness is testifying, not when the lawsuit is filed. Professor Weinstein addressed this issue and concluded:
“Some uncertainty has been expressed as to whether the applicable period should be measured up to the date when the trial commences, or the witness testifies, or the date of the charged crime. The time of testimony is most appropriate since the jury must determine credibility at that moment.” J. Weinstein & M. Berger, 3 Weinstein’s Evidence 11 609[07], at 609-74 (1991).
In Cathey, supra, the court determined that the trial court abused its discretion under Fed.R. of Evid. 609(b) when it allowed a sixteen year old conviction into evidence to impeach the defendant in a criminal trial. The appellate court held that sixteen years had passed from the witness’s release from prison to the date the witness was “called to testify.” 591 F.2d at 274.
In analyzing the situation, the court noted in a caveat that:
“... since the concern is the defendant's credibility when he téstifies the correct point from which to measure backwards in time may be the date when he testifies rather than the date when the trial commences, which in a protracted trial might be considerably earlier.”
591 F.2d at 274 n. 13. Thus, under Cathey, the earliest date for the time period to end is the commencement of trial with the date of testimony possibly more appropriate when the trial is protracted.
In ruling that a conviction less than ten years old was admissible, the Third Circuit stated:
[1327]*1327“Normally such evidence is admissible only if either the conviction or the witness’ release from prison occurred within 10 years of the trial"
United States v. Hans, 738 F.2d 88 (3rd Cir.1984) (Emphasis added). See also, United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986) (evidence of a prior conviction was admissible in a trial which commenced within ten years of the defendant/witness’s release from confinement); United States v. Holmes, 822 F.2d 802 (8th Cir.1987) (trial court did not abuse discretion under Fed.R.Evid. 609(b) in admitting impeachment evidence of four convictions where each of the convictions were over twelve years old “at the time of the trial”).
Thus, the only authority we have found which has considered the time period issue concluded that the ten-year period does not elapse any earlier than the date the trial commences. This conclusion is supported by the intent of § 2609, namely, to allow evidence of a witness’s prior convictions before the jury so that the jury can assess the credibility of the witness at the time they are testifying. Hence, French’s conviction was over ten years old at the time relevant herein,1 and was not admissible under § 2609(B) unless the probative value of the conviction “supported by specific facts and circumstances” substantially outweighed the prejudicial effect.
Since the case essentially came down to a “swearing match” between French and Ah-rend as to what each told the other, French’s conviction for income tax evasion had some probative value. Mills v. Estelle, infra, 552 F.2d 119 (5th Cir.1977). Indeed, the Eighth Circuit Court of Appeals has held that
“where the credibility of one witness must be weighed directly against that of another, the probative value of a prior conviction may well be enhanced, rather than diminished.”
United States v. Spero, 625 F.2d 779, 781 (8th Cir.1980); Holmes, 822 F.2d at 805. However, the majority of courts align with the Sixth Circuit court which stated in United States v. Sims, infra, 588 F.2d 1145 (6th Cir.1978):
“When stale convictions are offered for the purpose of impeaching a witness, they often shed little light on the present tendency of the witness towards truthfulness and veracity.” 588 F.2d at 1148.
This is especially true in light of both counsel affirming to the trial court that French normally was forthright in revealing his previous conviction to those with whom he was negotiating, and had done so with Ahrend during their negotiations.
Despite the probative value this evidence has, Ahrend and TAC had the legal burden to show that the probative value was substantially greater than the prejudicial effect. They concede that a presumption in favor of excluding the evidence must be recognized. Croney, supra; Cathey, supra; United States v. Sims, 588 F.2d 1145, 1147 (6th Cir.1978); Mills v. Estelle, 552 F.2d 119, 120 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). This presumption is necessary because Congress and the U.S. Supreme Court consider stale convictions to have “little, if any, probative value for determining the credibility of a witness.” Sims, 588 F.2d at 1148.
In meeting their legal burden, Ahrend and TAC were required to introduce “specific facts and circumstances” which showed the probative value substantially outweighed the prejudicial effect to Three “M”. 12 O.S.1981, § 2609(B); Croney, 748 P.2d at 37. They presented nothing to the court other than the fact that the conviction was one involving “dishonesty and false statements.” Indeed, after weighing the prejudicial effect and probative value, [1328]*1328the trial court specifically stated that the conviction was “tremendously prejudicial” and refused to allow the evidence. We find no abuse of discretion in this determination.
Next, Ahrend and TAC contend the trial court committed error in prohibiting counsel from using leading questions to examine Ahrend on the witness stand. Three “M” called Ahrend as a witness in its case-in-chief, and the trial court allowed counsel for Three “M” to “lead” Ahrend since he was a “hostile witness.” When Ahrend’s counsel attempted to use leading questions in his cross-examination of Ah-rend, the trial court would not allow it.
Ahrend and TAC assert they are permitted to cross-examine any witness that Three “M” calls, and that cross-examination, by its very nature, entails leading questions. They cite numerous authorities concerning the right to cross-examination, yet they appear to confuse this right with the right to utilize leading questions.
The applicable statute, 12 O.S.1981, § 2611, provides, in pertinent part, as follows:
“B. Any party to a civil action or proceeding may compel any adverse party or person, or any agent, servant or employee of such party or person, for whose benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness, at the trial, or by deposition, in the same manner and subject to the same rules as other witnesses, provided that any such adverse party, his agent, servant or employee called as a witness by the opposing party shall be deemed a hostile witness and may be cross-examined by the party calling him to the same extent as any opposition witness.
* * * Sfc * *
D. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Leading questions should ordinarily be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions may be used on direct examination.” (Emphasis added)
In the Evidence Subcommittee’s Note regarding § 2611, the following is stated:
“Section 611(B) is taken verbatim from Okla.Stat. 12 § 383 and was included to retain the statutory law enabling a party to call the adverse party during the presentation of his case in chief. The adverse party thus called and examined may thereafter be examined by his attorney, but he may not employ leading questions in the interrogation. The witness would, of course, be subject to impeachment pursuant to Rules [2]607, [2]608, and [2]609.” (Emphasis added)
The intent of the statute is that litigants are entitled to call the opposing party as a witness in the former’s case in chief. Inherently, that witness will be adverse to the case the litigant is trying to prove. Thus, the litigant is entitled to use leading questions to elicit the testimony from the witness.
However, contrary to the characterization of § 2611 given by Ahrend and TAC, the statute’s intent is not to allow counsel for one litigant to use leading questions to steer that litigant in the direction counsel wants them to go. The Evidence Subcommittee’s Notes clearly indicate that § 2611 was not intended to allow such a result.
Ahrend and TAC cite to other jurisdictions and to 98 Am.Jur.2d, Witnesses, § 510 (1976), claiming these authorities recognize that counsel can lead his client on cross-examination when that client is called as a witness by the opposing party. However, § 510 notes that the majority of cases do not allow leading questions in such cases. Of those jurisdictions that did allow leading questions, only one case, Wilcox v. Erwin, 49 S.W.2d 677 (Mo.Ct.App.1932), appears to embrace the argument that Ah-rend and TAC assert.
[1329]*1329Nevertheless, the intent of § 2611 is clear, and we find the trial court correctly refused to allow counsel to use leading questions, other than for impeachment purposes, during cross-examination of Ahrend when he was called as an adverse witness for Three “M.” This assignment of error is without merit.
Appellants’ final proposition of error concerns the jury instructions given by the court and requested jury instructions refused by the court. Appellants did not set out the instructions in totidem verbis in their brief as required by Rule 15 of the Rules of the Supreme Court of Oklahoma, 12 O.S.1981 Ch. 15, App. 1. For this reason alone, the Court of Appeals refused to consider this proposition of error. However, in James v. State Farm Mut. Auto. Ins. Co., 810 P.2d 365 (Okla.1991), we recognized that in some cases, it would be difficult for counsel to set forth the instructions verbatim and also make legal arguments concerning the same within the thirty pages allotted by the rule. Therefore, we amended Rule 15 to allow parties to set forth the instructions in totidem verbis in an appendix attached to their brief. Appellants have furnished verbatim copies of the jury instructions in their Petition for Rehearing, and we will consider their assignments of error concerning these instructions as if properly attached in an appendix per James.
Ahrend and TAC first claim that the trial court failed to give any instruction to the jury which presented their theory of the case, namely that Three “M” repudiated the contract when French told Ahrend that he wanted to change the contract because it was unfair. They argue that after this “anticipatory repudiation,” they were no longer obligated to fulfill the terms of the contract, citing numerous cases which hold that it is the trial court’s duty to submit jury instructions on the theory of the defense when supported by evidence. For example see, Justice v. Harrison, 569 P.2d 439 (Okla.1977).
However, the evidence conclusively showed that at the time of the incident, Three “M” had fulfilled all of its obligations under the contract. Thus, Ahrend and TAC could not rely on the defense of anticipatory repudiation as Three “M” had not breached the contract at the time nor able to breach it in the future. Where a party’s theory is unsupported by the evidence presented at trial, an instruction should not be given. Nail v. Oklahoma Children’s Memorial Hosp., 710 P.2d 755, 759 (Okla.1985). There being no competent evidence to support appellant’s anticipatory repudiation theory, we hold that Defendants’ Requested Instructions 2, 7, and 8 were properly refused.
Requested Instruction No. 1 related to punitive damages in contract cases which was sufficiently covered in given Instruction No. 24. Likewise, Requested Instruction Nos. 3, 4, and 6 concerning negotiations between experienced persons prior to entering a contract for the sale of real estate were sufficiently contained in the court’s Instruction No. 21. No error occurs when a court refuses to give requested instructions where the matters therein are covered by the instructions given. Dippel v. Hargrave, 206 Okla. 26, 240 P.2d 1070 (1952); Miller v. Bailey, 365 P.2d 1000 (Okla.1961); Linn v. Barnett’s Inc., 503 P.2d 1276 (Okla.1972).
Requested Instruction No. 5 set forth portions of the statutes of Oklahoma governing the interpretation of the intent of parties negotiating and entering into a contract. See generally, 15 O.S.1981, §§ 154-177. However, the statement of law in the requested instruction was incomplete and likely would have misled the jury when it considered the different causes of action in contract and in fraud. This is especially true in light of the fact that Three “M” plead and presented evidence that the fraud occurred in the negotiations prior to execution of the contract and the breach occurred independent of the allegedly fraudulent promises made during the negotiations.
Therefore, having reviewed each of the eight requested instructions, we find the [1330]*1330trial court made no reversible error in refusing to submit them to the jury.
Ahrend and TAC further contend the trial court failed to give any instructions which allowed the jury to return a verdict for the defendants. Other than the general duty of a trial court to instruct upon the issues of the case, they cite no law which requires the trial court to instruct the jury under what circumstances to find for the defendants in the case. Furthermore, the instructions contain verdict forms which allow the jury to find the issues in favor of Ahrend, TAC, or both.
“We have held that a judgment is not to be disturbed on appeal because of allegedly erroneous instructions unless it clearly appears that the instructions given or refusal either caused a miscarriage of justice or led to a different verdict than would have been rendered but for this alleged error.” Nail, supra.
We have reviewed all of the instructions given to the jury and find that, as a whole, the jury instructions fairly present the law applicable to the issues raised by the pleadings and evidence. Neither the instructions given nor the refusal of the requested instructions caused a miscarriage of justice or led to an erroneous verdict. Therefore, we find no error in the propositions regarding jury instructions.
Having found no reversible error by the trial court, the opinion of the Court of Appeals is VACATED and the judgment of the district court is AFFIRMED.
HODGES, V.C.J., and LAVENDER, DOOLIN, HARGRAVE and SUMMERS, JJ., concur.
ALMA WILSON and KAUGER, JJ., concur in result.
OPALA, C.J., concurs in part, dissents in part.