The appellant was convicted of murder, and his punishment assessed at fifteen years in the penitentiary.
This is the second appeal of this case to this court. The former appeal will be found in 277 S.W. 147, where a sufficient statement of the facts is given for the discussion in this opinion. *Page 436
The appellant failed to testify as a witness in the instant case. The state introduced witnesses who testified, in effect, that the appellant admitted to them that he killed deceased, but stated that the homicide was accidental and that at the time he was asleep and didn't know what he was doing. The court submitted both of these issues to the jury, instructing them, in effect, that if they believed from the evidence that the deceased met her death accidentally at the hands of the appellant, or if they believed from the evidence that the appellant shot the deceased while he was asleep and did not know what he was doing, or if they had a reasonable doubt thereof, then in either event they would acquit the appellant.
The only serious complaint urged by appellant's counsel, as we understand the record, is that the court failed and refused to charge the jury that unless the exculpatory statements of the appellant proved by the state had been shown to be untrue, then the state would be bound thereby and the appellant would be entitled to an acquittal. The record will disclose that the state did not rely alone upon the admissions containing the exculpatory statements of the appellant for a conviction in this case. Mr. Branch, in his Ann. P. C., Sec. 73, states:
"If the state does not rely for a conviction alone upon the admission or confession of the defendant, but introduces evidence in rebuttal of the confession and admission, it is not error to refuse to charge that the state is bound by the whole of said admission or confession containing the exculpatory statements," citing Slade v. State, 29 Tex.Crim. App. 392,16 S.W. 252; Powdrill v. State, 155 S.W. 231, and other authorities.
The case of Harris v. State, 281 S.W. 206, presents a problem that it is almost parallel to that involved in the instant case. In that case accused's confession contained the exculpatory statement that he killed deceased in self-defense, on which issue the court gave a complete charge. It was held by this court that under those circumstances a failure to instruct the jury that unless the exculpatory statements had been shown to be untrue, the state would be bound thereby, was not reversible error. In the case now being considered appellant's confession contained the exculpatory statements that he killed his wife by accident and while asleep and not knowing what he was doing. Both of these issues were properly submitted as a defense, with an instruction in connection with each that if the jury entertained a reasonable doubt upon the matter the appellant should be acquitted. The opinion in the Harris case, supra, seems to be controlling here. *Page 437
The court further states in the Harris opinion.
"We are not allowed to reverse cases for complaints directed at matters in the charge of the court unless same be such serious import as to lead the court to some belief of injury to the accused."
After a careful examination of the entire record, we are constrained to hold, under the Harris case, supra, and authorities there cited, that the refusal of the court to instruct the jury that the state was bound by the exculpatory statements of the appellant, as shown in this record, was not such error as will require a reversal of this case. We are therefore of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed.
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.
ON MOTION FOR REHEARING.