To properly consider certain matters urged by appellant in his motion for rehearing, it is deemed pertinent to state the following facts not set out in our original opinion:
The witness Ganelle Brashier, the young lady who was riding in appellant's truck, and who was asleep at the time of the collision, testified, upon direct examination by the State, that the collision awakened her; that she asked appellant what happened, to which he replied, among other things, that a car had run into them; that appellant then started to stop his truck, whereupon she suggested that he drive on, as it appeared to her that there was not room for another car to pass at that point on the highway; that appellant then drove on; that she then saw some whiskey in the truck, which she started to throw away, whereupon appellant told her not to throw it away; and that appellant and Barker (another passenger in the truck) drank the whiskey.
The State offered in evidence the voluntary confession of appellant, in which he made the statement that the car in which *Page 470 deceased was riding had hit his truck. The confession also contained statements showing the drinking of whiskey after the collision by appellant and his companion.
Appellant, testifying as a witness in his own behalf, said that the collision occurred as a result of the car in which deceased was riding having skidded into and hit his truck. He admitted having drunk the whisky after the accident. His arrest occurred after this drinking of the whisky. The State's case was replete with the testimony of arresting officers that, at the time of his arrest, appellant was under the influence of intoxicating liquor.
Appellant renews his contention that, under the foregoing facts, the State was under the burden of disproving the exculpatory statement in the confession to the effect that the car in which deceased was riding ran into and collided with his truck, and that he was entitled to have the jury so instructed. Note is to be taken of the fact that the trial court instructed the jury that if they entertained a reasonable doubt as to whether the deceased's car ran into or collided with appellant's truck, to acquit him. It is now a well-recognized exception to the rule requiring a charge on exculpatory statements that such a charge is not required where the accused testifies and his testimony corresponds to the exculpatory statement put in evidence by the State and the defensive issue arising from his testimony is fairly submitted to the jury. Yarbrough v. State, 125 Tex.Crim. R., 67 S.W.2d 612; Otts v. State, 135 Tex.Crim. R., 116 S.W.2d 1084. Such facts bring this case within the exception stated, and the trial court was not required to charge the jury in accordance with appellant's request.
In submitting the case, the trial court made appellant's guilt to depend upon the jury's finding, among other things, that the appellant was driving his truck on a public highway while under the influence of intoxicating liquor; and, in connection with such charge, the jury was instructed that, "Before you would be authorized to convict the defendant in this case, you must find and believe from the evidence beyond a reasonable doubt: FIRST, that the defendant, Pete Houston, on the occasion in question was under the influence of intoxicating liquor, * * *."
Appellant insists that such charge was too restrictive of his rights in that, by the use of the words "on the occasion in *Page 471 question," the jury was authorized to take into consideration the fact that whiskey was drunk by him after the accident and before his arrest. In consequence of that contention, appellant requested a charge to the effect that the question of his intoxication was to be determined "at the very time of the collision." We are unable to agree that, under the charge as given, the jury, in determining whether or not appellant was intoxicated, could have reached the conclusion that they could take into consideration the fact that he drank some whisky after the accident. The trial court's failure to give appellant's requested charge did not, therefore, constitute reversible error.
Appellant insists that he was entitled to have a charge upon negligent homicide. The trial court's refusal to so charge is sustained by the case of Jones v. State, 75 S.W.2d 683,127 Tex. Crim. 227.
We have again examined the facts, and fail to find therein any evidence that the accident was the result of any mechanical defect in the truck or trailer prior to the collision, or that the facts raised the issue of unavoidable accident. We adhere to our original conclusion that Chapter 507, House Bill 73, Acts of the Regular Session of the 47th Legislature, 1941, amending Art. 802, P. C., did not operate so as to nullify this conviction or to repeal the law upon which the conviction is predicated.
Being unable to agree with appellant, 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.