After re-examining the evidence in the light of the State's motion for rehearing we remain of the opinion that the court should have instructed the jury as to the effect of exculpatory statements. We think the case is ruled by Otts v. State,116 S.W.2d 1084. In the course of the opinion in that case Judge Hawkins, speaking for the court, used language as follows:
"In Robidoux v. State, 116 Tex.Crim. R.,34 S.W.2d 863, the question arose as to whether the trial court had given a sufficient charge upon the effect of an exculpatory declaration proved by the State. Without reviewing or referring to any authority the late lamented Judge Lattimore wrote as follows (page 865): "It appears * * * that, if in proving its case, the state put before the jury statements of the accused which, if true, would entitle him to an acquittal, there should be some direct and positive instruction given to the jury to that effect. * * * In other words, the right of the accused in such instance should be stated to the jury in plain and unmistakable language, so that they may know that the defendant is entitled to an acquittal if such exculpatory statements be not disproved or shown to be false by other testimony.' It may be admitted that the statement just quoted is not in accord with the announcement in other cases in some of which the opinions were written by the same learned judge, unless the apparent discrepancy may be accounted for by differing *Page 172 facts, which as heretofore stated, makes it difficult to arbitrarily announce an inflexible rule. Some of the cases last referred to are Harris v. State, 103 Tex.Crim. R.,281 S.W. 206; Foster v. State, 107 Tex.Crim. R., 296 S.W. 537.
"After having examined all of the authorities cited by appellant and many others as well, and with the desire to be of some aid to the trial judge under the present state of our decisions on the point at issue the writer ventures the following suggestion as a comparatively safe guide for the trial judge in determining ordinarily whether an instruction on exculpatory statements should be given. The ruling in Robidoux' Case, supra, seems a just and fair one, but should be stated with the qualification now to be indicated. Where the defendant does not testify in the case, and where the State in developing its case in chief introduces in connection with a confession or admission of the defendant an exculpatory statement which if true would entitle him to an acquittal, the jury should be told that he is entitled to a verdict of not guilty unless such exculpatory statement has been disproved or shown to be false by other evidence in the case. Without such instruction the jury has no information which may guide them in dealing with the exculpatory statement. The State has no just ground to complain of such instruction, for as heretofore pointed out, the State is not required to introduce the exculpatory statement, but having done so the jury should know how to deal with it, and the jury receives no information upon that subject even though the defensive issue raised by the exculpatory statement is submitted. What has been said can not be taken as an invariable rule, but it may partly aid the situation."
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.