Moore v. State , 136 Tex. Crim. 544 ( 1938 )

This appeal was dismissed at a former day of this term because of a defective appeal bond. The defect has been remedied. The appeal is reinstated, and the case now considered on its merits.

The check, the basis of this prosecution, was passed by appellant to Boyce Harp, and Harp testified that appellant told him at such time that he, appellant, had received such check in payment of oil sold to the person signing the check. This testimony, introduced by the State, was in its nature exculpatory, and the duty therefore developed upon the State to show that such statement was not true.

The appellant brings forward only one bill of exceptions, and that contains his exceptions to the court's charge. In such exceptions the failure to charge on such exculpatory statement is clearly brought to the court's attention, and a request embodied therein for the court to charge relative to the duty of the State to show the falsity of this exculpatory statement thus introduced by the State. The trial court failed to thus charge the jury, and we think such a failure was error. We have recently written rather fully on a like matter, and Judge Hawkins has rather fully reviewed the cases relative to such proposition in the case of Otts v. State, 116 S.W.2d 1084, and laid down the following as a rule that can be safely followed in the major portion of instances:

"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."

On account of the fact that the court refused to give such charge, this judgment is reversed and the cause remanded.

ON STATE'S MOTION FOR REHEARING.