The opinion
ODOM, Judge
(dissenting).
This case should be reversed and the cause remanded to the trial court because of the failure to give the requested charge on exculpatory statements.
The record reflects that during the direct examination of Officer Gowin he was asked: “And what did he tell you he was doing in that filling station?” An objection thereto was overruled by the court whereupon the witness replied: “He said he came in to get some gas and that it looked like somebody had broken into the office.” 1
The appellant did not testify or offer any evidence on his behalf at the guilt stage of the trial.
A charge was requested on the issue of exculpatory statements. Such requested charge was presented to and denied by the court prior to the time the court’s charge was read to the jury. [See Article 36.14, V.A.C.C.P.]. The statement, in so far as the offense of burglary is concerned, was exculpatory and the requested charge should have been given. If true, the statement showed that “somebody” else had broken into the premises. Wormley v. State, Tex.Cr.App., 366 S.W.2d 565 . The state having introduced the exculpatory statement was bound to disprove it.
The rule is: Where a defendant does not testify in a case, and where the state, *471 in developing its case in chief, introduces exculpatory statements of the defendant 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.
Why do we have the rule? The state has the burden to prove a defendant guilty by legal and competent evidence beyond a reasonable doubt. In meeting this burden, if the state introduces evidence that creates a reasonable doubt, then such doubt should be removed by the state.
In applying this rule, this court reversed the conviction in McIntire v. State, Tex.Cr.App., 431 S.W.2d 5 , where the state introduced the defendant’s testimony given at a prior trial of his co-defendant to corroborate the testimony of an accomplice. The defendant did not testify and the case was reversed because the trial court failed to give the requested charge on exculpatory statements made at the prior trial.
In Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178 , the state introduced evidence that upon the officer’s arrival at the defendant’s house, the defendant told witnesses that he and the deceased had been robbed and that evidently the deceased had been killed by the thief. This court reversed .the conviction because of the failure of the court to charge on exculpatory statements as set forth. Cavazos did not testify.
In Cole v. State, 170 Tex.Cr.R. 264 , 340 S.W.2d 45 , the defendant did not testify. In making out its case in chief, the state proved that the defendant, upon being accosted, said: “‘Well, I just found it; it ain’t mine.’ ” He was convicted of the offense of possession of whiskey in a dry area for the purpose of sale and this court reversed the conviction because of the failure to charge on exculpatory statements.
In Walker v. State, 138 Tex.Cr.R. 168 , 134 S.W.2d 280 , the defendant was convicted of the offense of turkey theft. The evidence, adduced by the state, showed that when the defendant was arrested “ * * * he immediately told the officers that he had gottem them from his mother in Lava-ca County.” This court reversed because “the court should have instructed the jury correctly and distinctly as to the effect of such exculpatory statements.” See also Medina v. State, 164 Tex.Cr.R. 16 , 296 S.W.2d 273 ; Wooley v. State, 162 Tex.Cr.R. 378 , 285 S.W.2d 218 ; Otts v. State, 135 Tex.Cr.R. 28 , 116 S.W.2d 1084 ; Yarbrough v. State, 125 Tex.Cr.R. 304 , 67 S.W.2d 612 ; Stelman v. State, 123 Tex.Cr.R. 330 , 58 S.W.2d 831 ; Robidoux v. State, 116 Tex.Cr.R. 432 , 34 S.W.2d 863 .
The majority has sub silento overruled a long line of cases that expressed a sound principle of law.
I dissent.
MORRISON, J., joins in this dissent.
. The majority holds that this is not an exculpatory statement and writes at length to explain why. To this, Mark Twain’s comment, “The more you explain it, the more I don’t understand it,” seems applicable.