Appellant has filed an able and well considered motion for rehearing. He insists that we erred in our original opinion in holding that the issues of receiving stolen property, accomplice, and alibi were not raised by the evidence.
Upon a more careful review of the record in the light of the motion, we are inclined to agree with him. The testimony which raises such issues comes from the lips of the appellant himself, *Page 39 which is somewhat at variance with his confession. Nevertheless, the issues being raised, he was entitled to a proper intruction from the court with reference thereto. See Merriweather v. State, 115 S.W. 44; Williams v. State,38 S.W. 989.
Appellant also insists that the court, by a proper instruction, should have submitted to the jury the issue of whether the purported confession was freely and voluntarily made. We are not entirely satisfied that such an issue was raised. However, in view of another trial, we suggest that the court, by an appropriate instruction, submit the same; not, however, in the language contained in the appellant's requested instruction with reference thereto. Thompson v. State, 63 S.W.2d 849; Brooks v. State, 95 S.W.2d 136.
It is therefore ordered that the motion be granted, the judgment of affirmance be set aside, and the cause be reversed and remanded.
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.