The opinion
ON MOTION FOR REHEARING.
Hawkins, Judge.
It is urged in a motion for rehearing by the State that we were in error in holding that under the proven facts the trial court should have instructed regarding the effect of an exculpatory statement contained in appellant’s confession which was introduced by the State.
Many authorities are submitted in the motion as sustaining the State’s position. We have examined all of said authorities and many others on the point at issue. It would extend this opinion to unpardonable lengths to undertake a review of the cases dealing with the subject. In Pharr v. State, 7 Texas Crim. App. 472, the general rule was announced that when the State introduced a confession or admission of an accused containing exculpatory declarations it was
ordinarily
incumbent upon the court to instruct the jury that the exculpatory statements were regarded as true unless disproved. Immediately thereafter exceptions to the rule began to be engrafted as will appear from Branch’s Ann. Texas P. C., Section 73, page 44, and 24 Tex. Jur., Section 109, page 598, until at the present time it is difficult for trial judges to know when a charge regarding exculpatory'statements is démanded. The Court has always found it difficult to lay down an arbitrary rule as to when such instruction should or should not be given because of varying facts, but in the Jones case, 29 Texas Crim. App. 20, 13 S. W. 990 , Judge Wilson seemed to sepse the situation and as a warning suggested in the language quoted in our original opinion that
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while it was not necessary in all cases to give such an instruction, yet it was then the opinion of the Court that where admissions and confessions of aii accused were admitted against him, and contained exculpatory statements,
“it would be proper and just to the defendant to instruct the jury”
relative thereto.
The present writer attributes some of the confusion in our opinions on the subject to a failure sometimes to keep in mind that it was not so much a question of a defensive charge arising from the exculpatory statement, as it was the
effect
of the exculpatory declaration when introduced by the State under circumstances where the State is supposed to vouch for the truth of its evidence. Especially is this true when it is remembered that the State is not required to offer the entire confession, but may offer such part as it deems proper, with the right reserved to the defendant to offer the balance which may be pertinent. 18 Tex. Jur., Sec. 104, page 190; Riley v. State, 4 Texas Crim. App. 538; Sanderson v. State, 109 Texas Crim. Rep. 142 , 3 S. W. (2d) 453 ; Arkhammer v. State, 107 Texas Crim. Rep. 191 , 296 S. W. 301 ; Smith v. State, 104 Texas Crim. Rep. 567 , 285 S. W. 1094 . Thus is shown the pertinence of the announcement in Forrester v. State, 93 Texas Crim. Rep. 415 , 248 S. W. 40 , that “State’s counsel might have refrained from introducing the exculpatory declaration but having done so, the law operates upon it.”
One exception to the rule which should cause no confusion is where the defendant testifies and his testimony corresponds to the exculpatory statements put in evidence by the State, and the defensive issue arising from his testimony is fairly submitted to the jury. The reasons which obviate the necessity for charging on exculpatory declarations under such circumstances are clearly set forth in Yarbrough v. State, 125 Texas Crim. Rep. 304 , 67 S. W. (2d) 612 . Another exception which should cause no trouble is where the State does not introduce the confession or admission containing the exculpatory statements in developing its case in chief, but offers same to contradict or impeach accused where he has testified as a witness, or where it fairly appears that the confession is not relied on for a conviction, but is offered to break down some defensive theory which has come into the case as illustrated in Gibson v. State, 53 Texas Crim. Rep. 349 , 110 S. W. 41 .
It is stated in many cases that an instruction on the effect of exculpatory declarations is not required where the State does not rely for a conviction “wholly” upon the defendant’s confession or declaration. It is this apparent exception which we
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are led to believe must give the trial judges great trouble in determining under given facts whether to instruct regarding the effect of exculpatory statements if he has embraced in his charge an instruction on the defensive issue raised by the exculpatory declaration. It is at this point the present writer believes the whole trouble lies. The defensive issue raised by the exculpatory statement may be properly submitted, but the jury is given no rule by which to appraise the effect of the exculpatory statement which has been placed before them by the State. The trial court and this Court might think the facts sufficient to show the falsity of the exculpatory statement, but the jury might not think so, and they are the judges of the weight of the testimony to be appraised by them under proper instructions as to the rules of law.
Some of the cases cited 'as supporting the exception that the court is not required to charge on the effect of exculpatory statements unless the State relies “wholly” on the confession are Slade v. State, 29 Texas Crim. App. 381, 16 S. W. 253 ; Marshall v. State, 104 Texas Crim. Rep. 619 , 286 S. W. 214 ; Tyler v. State, 121 Texas Crim. Rep. 25 , 53 S. W. (2d) 64 ; Freeney v. State, 123 Texas Crim. Rep. 488 , 59 S. W. (2d) 385 ; Pickens v. State, 86 Texas Crim. Rep. 657 , 218 S. W. 755 ; Servina v. State, 109 Texas Crim. Rep. 443 , 5 S. W. (2d) 510 . It will be found that the defendant testified in each of the cases mentioned, and his confession was used by the State to impeach or contradict the defendant, or was used in cross-examination of defendant while he was testifying as a witness.
In Robidoux v. State, 116 Texas Crim. Rep. 432 , 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: “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 facts, which as heretofore stated,
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makes it difficult to arbitrarily announce an inflexible rule. Some of the cases last referred to are Harris v. State, 103 Texas Crim. Rep. 479 , 281 S. W. 206 ; Foster v. State, 107 Texas Crim. Rep. 376 , 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 judges 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 rule 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.
In support of its motion the State relies in part upon Trevino v. State, 48 Texas Crim. Rep. 208 , 87 S. W. 1162 , and Dixon v. State, 128 Texas Crim. Rep. 584 , 83 S. W. (2d) 328 . The opinion in Trevino’s case demonstrates that the State was not relying on any confession. It is plainly stated that not a criminative fact was contained in the statement of accused. Furthermore, he testified as a witness and the confession was introduced to impeach him. In Dixon’s case accused made contradictory statements, claiming in one that he purchased the’ stolen animal from a named party and in a subsequent statement claimed that he purchased it from an entirely different party. The State was not relying on the confession. Dixon was found in possession of the stolen animal, and the State proved his contradictory statements to show that he was falsifying about the whole matter.
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In the present case the State proved that some one stored in an ice house a hind quarter of meat claimed by the State to have come from the stolen animal. The manager of the ice plant declined to positively identify appellant as the party who stored the meat. He went no further than to say that in his best judgment appellant was the party. Other circumstances were proven from which the jury might have been justified in concluding that appellant was also connected with other parts of the stolen animal. With the case in the condition indicated, lacking positive identification of appellant, the State in making out its case in chief introduced appellant’s confession to show that he was the party who stored the quarter of meat in the ice house, thereby placing him in possession of a part of the meat from a recently stolen animal, but in connection with his confession appellant said he and his brother had bought the meat in question, which exculpatory statement was also put in evidence by the State. Under the facts we believe the jury should have been told how to deal with the exculpatory statement, and are still of opinion that our original disposition of the case was correct.
The State’s motion for rehearing is overruled.