This is the second appeal; the opinion on the first appeal will be found reported in 148 Tex.Crim. R.,186 S.W.2d 243.
In his motion for rehearing appellant renews his insistence that the evidence is insufficient to sustain his conviction. The majority of the court held to the contrary upon the first appeal. In the original opinion upon this appeal the evidence is set out at considerable length. The letters written by appellant to Ann White contain many incriminative statements and suggestions. The claim of appellant upon this trial that the letters, while written by him, were written for his brother, furnished a basis upon which the jury could have predicated a belief that the claim now made was a subterfuge and a fabrication of evidence. This, to our minds, adds to the cogency of the evidence of appellant's guilt. We adhere to the conclusion expressed in our original opinion that appellant's contention that the evidence is insufficient can not be sustained.
Appellant requested the trial court to give the following special charge.
"You are charged as a part of the law of this case to be considered by you along with the main charge of the court to the jury that the State has introduced in evidence through the testimony of six witnesses that the defendant said that the said Flora Gragg jumped in the water in an attempt to rescue her son, Brady Lynn Blassengame, and you are charged that the State having introduced said statements in evidence is bound by them unless the State has, by other evidence, proven said statements to be false or untrue; and in that event, unless the State has, by other evidence, proven to your minds, beyond a reasonable doubt that said statements were untrue, you will return a verdict of 'Not Guilty' in this case."
The charge was refused and exception reserved. In his motion for rehearing appellant relies largely upon the bill as presenting reversible error.
In the opinion on rehearing upon the former appeal (148 Tex. Crim. 267, 186 S.W.2d 243, at page 247) is found the following announcement.
"The case does not turn upon whether a charge upon the effect of exculpatory statements should have been given, as was the question in Otts v. State, 136 Tex.Crim. R.,117 S.W.2d 463; Id., 135 Tex.Crim. R., 116 S.W.2d 1084, 116 *Page 393 A. L. R. 1454, but upon the effect of many contradictory and conflicting statements proven to have been made by appellant, which were evidently put in evidence by the State as circumstances along with others as tending to show appellant's criminal connection with the drowning of his wife."
The facts upon the present trial were substantially the same as upon the former trial, and in view of the statement quoted from the former opinion the trial judge was clearly warranted in refusing the special charge. This court would not hold its refusal error unless convinced that its holding upon the former appeal was clearly wrong.
From 4 Tex. Jur., pages 533 and 534, paragraph No. 378, we quote:
"A ruling by the appellate court upon a question of law raised on a former appeal will be considered as the law of the case in all subsequent proceedings in the same case, unless the ruling was clearly wrong and harmful. As has been well stated by the Court of Criminal Appeals:
" 'Were the rule otherwise, trial courts would in a great measure be at sea, and would feel inclined and be authorized to give but little weight to the decisions of the (appellate) court. However, if it appeared that the decision was wrong, and a substantial injury has been done a citizen of this state by such decision, it would be our duty and pleasure to remedy that wrong.' "
See cases cited in notes which support the text.
Appellant's contention that the refusal of the requested charge was error might well be overruled for the foregoing reasons, but because appellant urges the contention with so much earnestness we consider it at some further length.
Appellant testified that at first he and his wife fished from the bank, and the boy from the boat which was tied to the bank; that later he and his wife also got in the boat, and they moved out in the middle of the lake or stream and fished there from the boat; that when they were starting to go home the boy fell out of the boat, and appellant's wife jumped in after the boy; that both went down and never came up.
Based upon this evidence the court gave the following instruction: *Page 394
"You are further instructed that if you believe from the evidence, or have a reasonable doubt thereof, that Flora Gragg fell into the water accidently, or jumped into the water of her own volition, then the defendant can not be convicted in any such event for a failure or neglect to render aid to her, or for a failure, if any, to attempt to rescue her, and if you so believe, or have a reasonable doubt thereof, then you shall acquit the defendant."
In the opinion on rehearing in Otts v. State, 135 Tex. Crim. 28,116 S.W.2d 1084, this court realized that some confusion existed as to the necessity or otherwise of charging upon the effect of exculpatory statements or confessions, and some exceptions were noted, and the following is quoted from that opinion.
"One exception to the rule which should cause no confusion is where the defendant testifies and his testimony corresponds to the exculpatory statements put in evidence by the State, and the defensive issue arising from his testimony is fairly submitted to the jury. The reasons which obviate the necessity for charging on exculpatory declarations under such circumstances are clearly set forth in Yarbrough v. State,125 Tex. Crim. 304, 67 S.W.2d 612."
This holding has been followed in Houston v. State,143 Tex. Crim. 460; 158 S.W.2d 1004; Lindsey v. State, 146 Tex. Crim. 459,176 S.W.2d 192. The record brings the complaint of the refusal of the requested charge squarely within the exception mentioned, and the authorities cited.
Other exceptions to the court's charge, and bills of exception are not thought to present reversible error.
The motion for rehearing is overruled.