In his motion for rehearing appellant insists that we were in error in holding that the evidence adduced upon the trial was sufficient to show the falsity of the alleged exculpatory statements of appellant embraced in his confession and introduced by the State. If the statement was exculpatory the State was bound by it unless it was shown by the evidence to be untrue.
In referring to testimony that may be looked to by the jury in passing upon the question of the truth of exculpatory statements of the accused which are introduced in evidence by the state, this court, in Nichols v. State, 10 S.W.2d 109, used language as follows: "However, the inference of untruth may be drawn by the jury from all the evidence, including any inconsistencies in the statement itself or in the statements as compared with other evidence adduced upon the trial which is regarded by the jury as true." Looking to the allegel exculpatory statement in the light of the foregoing announcement, we think the jury were warranted in concluding that it was untrue.
In view of the fact that the court gave a charge relative to accidental homicide, we leave undecided the question whether Art. 42, P. C., is applicable to the present situation. *Page 350
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.