In his motion for rehearing counsel for appellant earnestly insists that reversible error is disclosed by bill of Exceptions No. 2 of which there was no specific discussion in the original opinion. From the bill mentioned, it appears that counsel for the State, in his closing argument, made to the jury the following remarks:
"As the Court tells you, 'You are the exclusive judges of the facts proven.' You don't have to believe the exculpatory part of the confession unless you want to, even though the State hasn't disproved it. You can believe what you want to and disbelieve what you don't want to."
Objection was made to the argument, and special charges touching it were requested and refused. The first of these charges reads in part thus:
"Gentlemen of the Jury: Counsel for the State, in their arguments to the jury have stated * * * that the way for you to decide whether or not the exculpatory statements in the confession are true is to see whether or not they are reasonable; that you could believe what part of it you wanted to and disbelieve what you did not want to, whether or not the State had proved the falsity of any statement."
"In this connection, you are referred to paragraph X of the Court's main charge and also to Special Charge No. 8.
"The above statements of counsel for the State are not the law but the law is fully stated in the main charge and the special charges.
"You are instructed therefore not to consider the above statements of State's counsel."
In Special Charge No. 8, a request was made to instruct the jury in these words:
"Now, you are instructed that the State is bound by the entire statement, and unless the State has proved to your satisfaction, beyond a reasonable doubt, that that part of the statement above *Page 438 mentioned is false you will find the defendant not guilty, and so say by your verdict."
In appraising the complaint, the argument of counsel set forth in the original opinion cannot be ignored. In substance therein, counsel argued to the jury that the reasonableness of the alleged exculpatory statements was an element which the jury was authorized to take into account in passing upon the truth of such exculpatory statements. Considered in that light, it was manifestly within the province of the jury upon the whole evidence to determine the value of the exculpatory statements. Both charges requested embraced the proposition that the burden rested upon the State to prove the falsity ofthe exculpatory statements. Such is not understood to be in the law. The proper announcement is deemed that embraced in subdivision 10 of the court's charge, namely:
"* * * and the State is bound by them unless the exculpatory statements are shown by the evidence to be untrue."
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. See Pratt v. State, 53 Tex.Crim. Rep.; Combs v. State, 52 Tex.Crim. Rep.; Pharr v. State, 7 Tex.Crim. App. 472.
The requirement that there be an instruction to the jury touching the truth or the falsity of the exculpatory statements is not an unfailing one. Jones v. State, 29 Tex.Crim. App. 21; Slade v. State, 29 Tex.Crim. App. 292; Pickens v. State,86 Tex. Crim. 568. In cases where the exculpatory statements present a specific defense which comes from no other source, and such defensive theory is submitted to the jury for decision in an appropriate charge, it has been held that an additional charge to the effect that the exculpatory statements must be disproved is not required. Harris v. State, 281 S.W. Rep. 206; Bradley v. State, 295 S.W. Rep. 606. In the present case, the only defensive theory was that of self-defense, and this arose from the exculpatory declarations in the appellant's confession. The court submitted the issue of self-defense to the jury in the paragraphs of the charge against which we have been able to perceive no just criticism.
The motion for rehearing is overruled.
Overruled. *Page 439