This case was affirmed, and the opinion rendered, on June 16, 1915. On June 29th following, — after this court had adjourned to October 4, 1915, appellant, by his able attorneys who represented him in the court below and in this court on the original submission, filed a motion for rehearing on these grounds only:
1. Claiming that this court erred in holding against him on his bills and propositions thereunder relative to the testimony of Cassie Dunn, as set out in pages 1, 2 and 3 of the opinion, and further contending that the judge's qualifications were unauthorized and this court in effect should disregard them. I think his contentions on this point are not well founded and can not be sustained. I further believe that the record bears out the district judge in his qualifications to the bills.
2. His next ground is, in effect, that the court erred in overruling his motion for a continuance. He also claims that the explanation made by the judge to his bill on this question is not borne out by the record. I have again examined this question, and think the judge's qualification is borne out fully by the record. I stated it sufficiently in the original opinion.
3. His only other ground for a rehearing is his claim that the court erred in overruling his motion for a new trial because of his claimed newly discovered evidence. I have again reviewed this question, and am well satisfied that no reversible error was committed by the court on this ground. He heard all the testimony, saw the witnesses and their manner of testifying, the manner of direct and cross-examination, and was better able to judge their veracity, etc., than this court possibly could. Lamb v. State, 74 Tex.Crim. Rep., 169 S.W. Rep., 1158. *Page 517
As stated, the above three grounds are the only ones made the basis of the motion for rehearing herein. At the instance of appellant's other eminent attorneys, evidently engaged by him after the original decision and filing of his motion for rehearing herein had been had, the submission of this cause for rehearing was postponed for some weeks in order that they might further brief for him said motion. They then filed quite a lengthy and able brief and argument. Later, they were given additional time, and then filed still another brief.
Without any complaint whatever by appellant in his motion for rehearing, in said brief, he now urges two other grounds: — in one that the trial court erred in admitting in evidence the letter of Cassie Dunn to him, copied in the original opinion; in the other, to the latter sentence of the court's charge to the jury relative to their consideration of this letter. This charge is also copied in the original opinion.
First, as to the admissibility of said letter. It is conceded by appellant that the objection to the copy, because a copy and not the original, is under the proof, not well taken. He seems to concede in one place in his brief, "that letter and the inquiries made concerning it may have been admissible on redirect examination of Cassie Dunn, with a view of refreshing her memory, with a view of inducing her to confirm and admit statements theretofore made, or even for the purpose of contradicting her." But his urgent and vigorous contention is: "If the original letter had been presented and it was conceded that it had been received by appellant and it were shown beyond controversy that it was produced from his possession it would not have been admissible," and he asserts he will "demonstrate this." I think the reverse of his contention is the law and can be demonstrated to be so, both by reason and authority. His seeming concession that the letter may have been admissible for said certain purposes, and his immediate insistence that it was inadmissible, are, at least, apparently inconsistent and contradictory.
The witness Cassie Dunn was unquestionably "extremely unfriendly to the State," and "testified adversely and injuriously to the State" on appellant's examination of her, and "openly testified to anything she thought would be beneficial to the defendant," and was, "in his hands, `like clay in the potter's hands,'" as stated by the trial judge, and is abundantly established by this record. And, at his instance, and upon his examination of her, he had her to testify specifically: "Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me in any way. Never did ask me to. Never asked me to yield to him in any way." She also swore that she told appellant before he sent her to her father's, that she thought she was pregnant, and: "I did not tell him I would not tell who the father of the child was. I did not make him any promise in that regard."
The State impeached her on this testimony directly by her written statements in said letter. It is copied in the original opinion. It is unnecessary to again copy it. A mere reading of the letter will show *Page 518 it is a direct and flat contradiction of her said testimony in favor of appellant on this trial.
That said testimony by her in favor of appellant, and given at his instance, was very material for him and against the State, can not even be questioned by anyone. Its direct and only effect, if believed by the jury, would have been to destroy the State's case and show his innocence of the crime for which he was indicted and on trial. So that it was the imperative duty of the State to discredit and impeach her as to this very material testimony, if it could do so.
Every text-book writer on the subject, and the decision of every court of the land, is, that former statements of a witness which are contradictory of his present testimony are admissible to impeach him. This is not only so by oral, but especially so by written statements. This court has always heretofore so held, and all appellate courts of this State uniformly so hold. I know of no exception. This method of impeaching a witness is daily and universally acted upon by all trial courts of this State. In order that no uncertainty might arise on this point as to one's own witness our statute (C.C.P., art. 815) expressly enacted: "The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness."
There is nothing in his bills to show, or intimate, that the State knew or had any notice whatever that Cassie Dunn would testify that Dollins was the father of her child when it introduced her and she gave material testimony in its behalf. Even if the State had known this, there is nothing in the books or decisions, until the majority opinion in this case, that the State could not impeach her by said letter and her sworn written testimony before the grand jury. The effect of the decision in Blake v. State, 38 Tex.Crim. Rep., cited in Judge Harper's opinion, is to the reverse of what he cites it for. The cases of Scott v. State, 20 S.W. Rep., 549; Oates v. State, 67 Tex. Crim. 488, 149 S.W. Rep., 1194, and Perrett v. State,72 Tex. Crim. 212, id., 75 Tex.Crim. Rep., 170 S.W. Rep., 316, have no application whatever to this case. A mere reading of these several cases will clearly demonstrate what I say about them is correct.
That said letter and said statement before the grand jury was admissible to impeach Cassie Dunn, there is no shadow of doubt.
But appellant vigorously contends that the reason assigned by the trial judge why he admitted it, is, in effect, no valid reason, and is contrary to the law. His contention being, in substance, that a conspiracy can not be entered into to commit the crime of incest, arguing further that, even if there could be a conspiracy to commit such crime, that as soon as it is committed, "such conspiracy had terminated," and no statement or admission by the other party would be admissible against the party on trial.
It is elementary that a wrong reason for a correct ruling can not *Page 519 affect the ruling even if it be conceded the trial judge gave a wrong reason for his correct ruling. I know of no law, or decision, to the effect that the man and woman who commit incest can not also be guilty of conspiracy to commit said crime. I know of no reason why they can not. The statute is plain that they can. Article 1433, P.C., is: "A `conspiracy' is an agreement entered into between two or more persons to commit any one of the offenses hereafter named in this chapter." Article 1437 is: "The agreement, to come within the definition of conspiracy, must be to commit one or more of the following offenses, towit: Murder, robbery, arson, burglary, rape, or any other offense of the gradeof a felony." Incest is a felony. (Art. 486, P.C.)
Further, the trial judge explained and qualified appellant's bill to the admission of said letter fully. I quoted most, but not all, of this, in the third page of the original opinion, which is the first quotation therein of his quoted qualifications. He did not limit his qualification to only a conspiracy to commit the crime of incest, but pointedly stated such conspiracy went further. I will state the full substance of his explanation and qualification. It is: That a conspiracy existed between defendant and Cassie Dunn, not only to commit the crime of incest, but also to suppress knowledge that the child that was to be, and in fact was later, born, was the fruits of their crime of incest; and extended even further, to a resumption of their unlawful relations with each other as soon as the birth of the child had been accomplished and the public quieted, and their relatives satisfied regarding his connection with her, and that they both would deny he was the father of the child, and commit perjury with regard thereto in order to keep secret the fact that said child was the offspring of the incestuous intercourse. and to carry out their design that such intercourse might be resumed by them, and it was during all this conspiracy said letter was written to and received by him. He accepted this bill thus explained and qualified, and under the well settled rule, until now in this case, is bound thereby.
In his brief and argument he ignores, — at least does not discuss or mention, — the full conspiracy, but confines his contention to only one item of it, towit: the crime of incest. The case of Serrato v. State, 74 Tex.Crim. Rep., 171 S.W. Rep., 1133, is directly in point against him. In that case Serrato was on trial for the murder of Ortiz. He claimed not only that he personally had nothing to do with the killing, but also that he was not a party to any agreement or conspiracy with some fifteen others, or any of them, to kill; and, further, that, if he had entered into such conspiracy, it terminated with the killing, and that thereafter no act, conduct, word or statement by any of the others was admissible against him. The State contended that the killing did not terminate the conspiracy, but it also embraced additional things thereafter to be done. With the issues thus drawn, the State was permitted to introduce in evidence, over his objections, all the acts and conduct of each and all of said other parties, and what each of them said, after said killing and until they were actually arrested and placed *Page 520 in jail — all of said acts, conducts and statements occurring after the killing. This court expressly held all said evidence was admissible, holding:
"It has always been the rule in this State that the acts and declarations of one conspirator in furtherance of the common design are admissible against another conspirator pending the conspiracy and until its final termination. This proposition includes anything that was within the contemplation of the conspiracy, such as dividing the spoils, or any of those matters that may be subsequent to, but included in the scope of the conspiracy. O'Neal v. State, 14 Texas Crim. App., 582; Rix v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 505; Franks v. State, 36 Tex.Crim. Rep., 35 S.W. Rep., 977; Small v. State, 40 S.W. Rep., 790; Long v. State, 55 Tex.Crim. Rep., 114 S.W. Rep., 632; Gracy v. State, 57 Tex.Crim. Rep., 121 S.W. Rep., 706; Milo v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 1028; Kipper v. State, 45 Tex.Crim. Rep., 77 S.W. Rep., 611; Holt v. State, 39 Tex.Crim. Rep., 45 S.W. Rep., 1016, 46 S.W. Rep., 829; Eggleston v. State, 59 Tex. Crim. 542, 128 S.W. Rep., 1111.
"And what is said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design, is admissible against the one on trial, though said and done in his absence. Wallace v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 966; Barber v. State, 69 S.W. Rep., 515; Trevino v. State, 38 Tex.Crim. Rep., 41 S.W. Rep., 609; Dobbs v. State,51 Tex. Crim. 113, 100 S.W. Rep., 946; Roma v. State,55 Tex. Crim. 344, 116 S.W. Rep., 598; Cox v. State, 8 Texas Crim. App., 254, 34 Am. Rep., 746; Smith v. State, 21 Texas Crim. App., 96, 17 S.W. Rep., 560; Armstead v. State, 22 Texas Crim. App., 51, 2 S.W. Rep., 627; Slade v. State, 29 Texas Crim. App., 381, 16 S.W. Rep., 253; Richards v. State, 53 Tex. Crim. 400, 110 S.W. Rep., 432; Bowen v. State, 47 Tex. Crim. 137, 82 S.W. Rep., 520; Williams v. State, 45 Tex. Crim. 240, 75 S.W. Rep., 509; Chapman v. State, 45 Tex. Crim. 479, 76 S.W. Rep., 477; Hannon v. State, 5 Texas Crim. App., 549; Taylor v. State, 3 Texas Crim. App., 169; Moore v. State, 15 Texas Crim. App., 1; Eggleston v. State, 59 Tex. Crim. 542, 128 S.W. Rep., 1105." In that opinion Judge Harper cites and quotes at length other authorities applicable herein. See also the companion cases of Gonzales v. State, 74 Tex. Crim. 458, 171 S.W. Rep., 1146; Gonzales v. State, 74 Tex. Crim. 468, 171 S.W. Rep., 1149, and Martinez v. State, 75 Tex. Crim. 416, 171 S.W. Rep., 1153, to the same effect.
If, as contended by appellant in his brief, the conspiracy between him and Cassie had gone to the extent only of committing incest, then his contention might have been applicable and sound. But the conspiracy between them did not stop with their agreement to commit, and committing, incest, but, as stated by the court, it was not only (1) to commit incest, but also (2) to suppress all knowledge that her baby was the fruits of this crime, and (3) that they both would deny *Page 521 he was the father of her child and commit perjury in order to keep secret the fact that said baby was the fruit of their incestuous sexual intercourse, and (4) as soon as the public was quieted and their relatives satisfied he was not the father of her illegitimate baby, resume their illicit incestuous intercourse. It is, therefore, certain that their conspiracy had not been completed and ended, but that it was still pending and incomplete, and they both were, on this very trial, doing all in their power and within their agreement to carry out their full conspiracy. Again, as specially applicable herein I reiterate what this court said in Martinez v. State, supra, as follows:
". . . The rules of law governing in conspiracy cases have been well established, and as said by a well-known writer:
"`The conspiracy may, of course, be shown by direct evidence, and it is apprehended should be so proved if this character of evidence is attainable. Direct evidence is, however, not indispensable. Circumstantial evidence is competent to prove conspiracy from the very nature of the case, and the rule which admits this class of evidence applies equally in civil and criminal cases. In the reception of circumstantial evidence great latitude must be allowed. The jury should have before them every fact which will enable them to arrive at a satisfactory conclusion. And it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts shown have some bearing upon, and tendency to prove, the ultimate facts at issue. But much discretion is left to the trial court, in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. If it be shown that several have combined together for the same illegal purpose, any act done by one of them in pursuance of the original concerted plan, and with reference to the common object is, in the contemplation of the law, the act of all, and therefore proof of such act will be evidence against any of the others who were engaged in the conspiracy, and any declaration made by one of the parties in the absence of the others during the pendency of the illegal enterprise is not only evidence against himself but against all the other conspirators who, when the combination is proved, are as much responsible for such declarations and the acts to which they relate as if made and committed by themselves.'
"These rules have been approved in all the text-books and in the following cases in our own court: Atkinson v. State,34 Tex. Crim. 424, 30 S.W. Rep., 1064; McKenzie v. State,32 Tex. Crim. 568, 25 S.W. Rep., 426, 40 Am. St. Rep., 795; McFadden v. State, 28 Texas Crim. App., 241, 14 S.W. Rep., 128; Clark v. State, 28 Texas Crim. App., 189, 12 S.W. Rep., 729, 19 Am. St. Rep., 817; Phillips v. State, 26 Texas Crim. App., 228, 9 S.W. Rep., 557, 8 Am. St. Rep., 471; Williams v. State, 24 Texas Crim. App., 17, 5 S.W. Rep., 655; Kennedy v. State, 19 Texas Crim. App., 618; Pierson v. State, 18 Texas Crim. App., 524; Avery v. State, 10 Texas Crim. App., 199; Cox v. State, 8 Texas Crim. App., 254, 34 Am. Rep., 746; and *Page 522 the authorities cited in Serrato v. State, 74 Tex. Crim. 413, 171 S.W. Rep., 1133, and Gonzales v. State, 74 Tex. Crim. 468, 171 S.W. Rep., 1146, 1149. . . ."
Upon a most careful study of the testimony, I think it clearly supports the judge in his qualification of appellant's bill. In the original opinion I stated some of the facts. I will here give some other of the salient facts. In the first part of the original opinion I gave the material Cassie Dunn's testimony on direct examination by the State. It shows with much cogency that appellant, and he alone, had the opportunity to get her pregnant. In his brief he seems to concede this, stating that he had an opportunity, and probably the best opportunity of anyone else, to have committed the offense, "does not appear a matter of doubt under the evidence." That she was gotten pregnant by some man about January 29th, while she lived with appellant, is established with certainty by the fact that a baby was born to her October 29, 1914. She swore she told him, when it occurred, that she had missed her menses, but she told neither her sister nor grandmother. Se swore "that she was sick some way. Her womanly periods had stopped," — the natural effect of pregnancy. They both swore he then took her to a doctor to see if she was pregnant. The doctor swore this was the latter park of February or first of March, 1914; that appellant told him to examine her, and he did so, and did not then discover any evidence of pregnancy. It was then just about a month since the act of intercourse producing pregnancy had occurred. The doctor said that he felt of her abdomen and stomach through her clothes, and did not make any further examination of her. Of course, at that early stage, his very casual examination of her could not, and would not, disclose pregnancy; but he testified that the child's birth made it certain that she was pregnant when he examined her. Appellant sent Cassie off to her father's in June, 1914. She swore that before that she told him she thought she was pregnant, but "he did not ask me who the man was," "did not make any inquiry as to who the father of it was." "He did not ask any questions about it." The reason he didn't is perfectly evident. It was because he knew that he, and no one else, had had sexual intercourse with her, and that he, and no one else, had gotten her pregnant, and that he, and no one else, could be the father of her then unborn babe. No other conclusion can be drawn. When appellant sent her off to her poor old father to be confined, he intended she should return to him as soon as the babe was born and she could, for he swore when he sent her he gave her money to buy her return ticket to come back on. She swore that she intended to return to him. The trial judge was clearly justified in believing and stating, that this return was for the purpose of resuming their illicit incestuous intercourse. That the judge was authorized to believe they both swore falsely when they said he did not have sexual intercourse with her is clear from the testimony. It was a month after she reached her father's that the doctor there, and her father, found out she was pregnant. Her father at once did all he could to get her to tell him who got her pregnant. She refused to tell. *Page 523 The doctor tried to get her to tell him. She refused. The doctor then advised her that he knew a maternity home in Kansas City where she could go, be confined, the baby adopted, she return, and nobody would ever know anything about it, but it would take $250 to $300 to do this, and advised her to write to the father of the child for the money. She promptly wrote to appellant for the money, $300, telling him she wanted it to go to said maternity home in Kansas City. He failed or refused to produce that letter, but admitted he received and promptly answered it. No doubt the letter gave him full information, and if produced would have been most damaging against him. He swore, "when the girl (Cassie) wrote me she wanted $300 to go to a maternity home in Kansas City, I wrote her and asked her why she did not go to Fort Worth or Dallas or Abilene, somewhere in Texas."
The judge was clearly authorized by the evidence to believe Cassie Dunn's testimony, that Henry Dollins, and not appellant, was the father of her babe, and that she did not promise and agree with appellant not to tell he was its father, was untrue. I will give some more of these facts which justifies the judge's qualification. If Dollins, and not appellant, had been the father of her babe there was no reason on earth why she would have refused to tell on Dollins, for neither he nor she would have been guilty of any offense. When pressed for a reason she said, "because I did not want to tell it." On the other hand, there was every reason for her to refuse to tell on appellant, for, if she did, he was certain to be convicted of incest and be sent to the penitentiary as a criminal. They both knew this. She flatly refused to tell her father, her doctor, the grand jury, or anyone else. Of course appellant knew it without her telling him. She swore before the grand jury, "Uncle Alfred (appellant) knew when I left to go out West that I was pregnant, and I promised him not to tell it. He knows who it is." "I never had any intercourse with but one man in my life." "I had intercourse several times. I never had any sweethearts. I told Uncle Alfred not to tell who it was. He knows who it is . . . and he will not tell. I won't tell who it was." "I would not have yielded my virtue to any man that did not have my respect and confidence. I had intercourse with the man in different places, both day and night." If she had at first told her father, her doctor, and especially the grand jury, that it was Dollins, the probabilities are the grand jury would never have indicted appellant. Her late tale, that it was Dollins, is so unreasonable that it could not deceive or mislead anyone to believe it was he, and not appellant. She and Dollins were barely acquainted. They had never been thrown together so that he could have had an opportunity even to have gained her "respect and confidence." Her whole conduct and every act and word of hers, from start to finish, stamps her testimony that it was Dollins and not appellant as unreasonable. She swore she never, at any time or place, told Dollins that he was the person who got her pregnant, and never at any time so wrote him. That she never wrote to him at all. When the doctor told her to write to the father of her then unborn babe and get money to go to *Page 524 the Kansas City maternity home so that she could there be confined and effectively conceal her shame, she promptly wrote to appellant, and not Dollins, for the money. She swore she loved her uncle. He swore he loved her. That love was not merely such affection as is common and natural between an uncle and niece as such, but it was more, it showed to be amorous. This record shows that the U.S. mail was kept "hot" carrying letters, almost daily, from one to the other just after he sent her away to be confined, like the most ardent lovers when separated, one from the other. Of course it was not shown the full number of letters which passed beween them. The State had no way of securing them. It is apparent they both would conceal every one which they thought would have a tendency to "give them away," and that they would produce only those which they thought would not do this. He failed and refused to produce the letter wherein she wrote for said $300, although he had to admit he received and answered it, and he denied receiving the one copied in the opinion, but the State proved not only that she wrote him that letter, but that he also received it. Among other things, her and his testimony, in effect, shows that her belated tale that Dollins, and not he, was the father of her babe, was very recently manufactured. Appellant at first had had Dollins subpoenaed as his witness to testify to his good reputation. Dollins had attended the various settings of the case to so testify for him. But just before the trial, it seems, Cassie recalled the fact that years before, and before Dollins was married, he (Dollins) had been indicted in Bosque County for seduction, and upon that, doubtless inspired by appellant, she attempted to manufacture the tale that Dollins was the man. Appellant testified that when Dollins went to work on a bridge near his house he warned Cassie not even to work in the garden in sight of, but some distance from, Dollins, "just on account of the way he (Dollins) had acted heretofore, you know. Yes, that was the reason." That his community knew Dollins had been charged with seduction. Of course both Cassie and appellant swore, in effect, there was no concert between them that she should try to swear it off on Dollins, but all the circumstances were amply sufficient to justify the belief that such was a fact. Dollins swore positively that he never at any time or place had sexual, or even ordinary social, intercourse with Cassie. And his, and other, testimony showed he never had the temptation or opportunity. That the said seduction charge against him was defeated by proving that said alleged seduced woman was common — other men had sexual intercourse with her, and all this occurred years before while he was unmarried. That he had been married for about four years, and had a strong, vigorous, healthy wife, when the offense herein charged was committed.
In his next to his last brief, appellant contended with all positiveness, in effect, that it was only "where a direct accusation of guilt is made to a defendant in his presence and is heard and comprehended by him, and goes undenied, that this act and fact may be shown as in the nature of an admission," and that such undenied accusation to be admissible must be "made in thedirect personal presence of the accused," *Page 525 and that "there is no authority sustaining a rule" that his failure to answer a letter received by him so accusing him denying such accusation, is admissible. He pressed this point vigorously in argument and cited some authorities, which he claimed sustained his position.
In justice to him, it must be stated that in his last brief filed he seemed to recede from his above position, and concede, in effect, that such accusing letter unanswered denying such accusation, under certain circumstances, would be admissible as an admission of guilt, and cites authorities to that effect; but contends, that the circumstances of this case are not such as authorized said letter in evidence. At least I so understand his briefs and positions. But whether I correctly state or understand him, or not, I think, both by reason and authority, said letter, under the circumstances of this case, was clearly admissible. I will discuss the question from that standpoint.
It is the settled law of this State that when a verbal accusation of guilt is directly made to a defendant in his presence and hearing, and is understood by him, and he does not then and there deny the accusation but remains silent, said accusation and his silence are pertinent evidence against him as an admission or confession to show his guilt. This rule is established by many decisions of this court, uniformly so holding. It is unnecessary to collate them. But see LaGrone v. State, 61 Tex.Crim. Rep.; Davis v. State, 54 Tex. Crim. 236; Stanley v. State, 48 Tex.Crim. Rep.; White v. State, 85 S.W. Rep., 1140, and sec. 223, Branch's Crim. Law, where he collates some of the cases.
The correct rule on this point is also tersely stated in an elaborate and clear note in 25 L.R.A. (N.S.), 543, where a number of cases from this and other States in point are cited, as follows: "The rule has been broadly and generally asserted that statements made in the presence of a person accused of crime, and not denied by him, must be taken as adopted by him. . . . And that they are competent evidence against him as an indication of guilt. . . ."
We understand appellant concedes the law as stated as to oral accusations. To my mind there are stronger reasons for written accusations unanswered and undenied being admissible in some instances than oral ones. But first to the authorities.
1 Greenleaf on Evidence (13th ed.), sec. 198, says: "Thepossession of documents, also, or the fact of constant access to them, sometimes affords ground for affecting parties with an implied admission of the statements contained in them. Thus, . . . the possession of letters, and the like, — are circumstances from which admissions by acquiescence may be inferred. . . ."
1 Wig. on Ev., sec. 260, says: "The possession of a document is an important and often the only circumstance to show that its possessor has by reading it become aware of its contents. . . . This use of such evidence needs, however, to be distinguished from its use for other purposes, which are frequently associated in the same litigation; for it may be used to evidence an assent to the document's contents, or an admission of their truth." *Page 526
2 Jones on Ev. (1413 ed.), sec. 269, p. 493, says: "Letterswritten to a party and received by him may, under some circumstances, be read in evidence against him, but before they can be received as admissions against him, there must be some evidence besides mere possession showing acquiescence in their contents, as proof of some act or reply or statement."
16 Cyc., 960, says: "The general rule is that omission to answer a written communication is not evidence of the truth of the facts therein stated, and that under ordinary circumstances a party is not required to reply to a letter containing false statements of fact. There are circumstances, however, under which unanswered letters are competent evidence of admission by acquiescence in the statements therein contained; as when the party receiving a letter has in any way invited the same, or when there is any ground to infer that he has acted on the letter by partly answering or otherwise recognizing it."
2 Wh. Cr. Ev. (10th. ed.), sec. 682, after saying, in effect, the mere finding of an unanswered and unacknowledged letter in one's custody, is not sufficient for its admission against him, says: "It is otherwise, however, when the party addressed in anyway invited the sending to him of the letter; or where there isground to infer he acted on the letter." It is useless to multiply authorities. They are all to the same effect.
Mr. Wigmore's recent work on Evidence is regarded by most as the best and most thorough ever written on the subject. In addition to what I have quoted from him in volume 1, he treats the subject in detail in volume 2, and more so than any other author. In section 1073, under the heads of "Writing sent to the Party, or Found in his Possession: Unanswered Letter": he treats the subject at length. He clearly lays down the propositions, and cites cases in point clearly supporting him, to the effect that a letter or document found in a party's possession accusing him of committing a certain crime unanswered or undenied is admissible against him as an admission of his guilt. He propounds the question: Is the party's possession of a third person's document "sufficient to justify an inference of assent to the statements contained therein?" And answers: "It is easy to imagine instances in which such an inference would be fallacious. Yet, since the party may always exculpate himself and disown the inference by proving the true reason for his retention of the document, the question remains whether the mere fact of possession ought not to suffice at the outset to make the document receivable, subject to explanations that may later be made. This question was in orthodox practice answered in the affirmative." Again he says: "The failure to reply to a writtencommunication may sometimes suffice to permit an inference of the party's assent to the correctness of the statements made therein upon the general principle of (sec. 1071) `silence gives consent.'" I think it unnecessary to cite and quote from the cases he cites in his notes. Suffice it to say they are from some of the greatest judges and courts, and clearly sustain him. *Page 527
All the authors and judges writing on the point mention instances and give certain circumstances wherein such a letter would be inadmissible, but they are all very different from the circumstances and facts of this case; and none of them hold that under such facts and circumstances as shown in this case would the letter be inadmissible, but, on the contrary, their effect would be that such letter is admissible as an admission of appellant.
I will give only some of the facts and circumstances on this point. In doing so, it will be necessary to repeat some already stated. Cassie had been constantly and exclusively in appellant's care, custody and control since she was fifteen or sixteen years old — some three or four years. She had lived with him all these years. It was his duty to shield and protect her from harm and injury, and especially protect her in her virtue and chastity, which is the most sacred thing to every woman. Woman's virtue is the most sacred thing to every man, too. He, and he alone, had had the opportunity to have had sexual intercourse with her. Her menses did not come on at the regular time. She told him, but told neither her sister nor grandmother, who were both in his house at the time. He promptly took her to a doctor to see if she was pregnant, but it was too soon after the act of sexual intercourse for the doctor to ascertain by the very casual examination he gave her whether she was then pregnant or not. Appellant swore she was sick — her womanly periods had stopped. She told him, in effect, she was pregnant. He sent her far away in a distant county to be confined. At no time did she tell any other except him that she was pregnant, or even that she thought she was. It was more than a month after she reached her father's before the doctor there or her father, learned she was pregnant. She was then about six months "gone." The doctor at once advised her to go to a maternity home to be confined and effectively conceal her condition and write to the father of her babe for money to do this. She immediately wrote to appellant for the money, telling him it was to go to a maternity home. He received and answered her letter. He knew she could go to a maternity home for no other purpose than to be confined and dispose of her illegitimate babe. Such homes are for no other purpose. Her father and doctor tried to get her to tell who was the man who had gotten her pregnant. She peremptorily refused to tell. From the facts and circumstances then known to her father, he was certain appellant, and no other, was the man, and he at once wrote to him in language no one could misunderstand, denouncing him as her seducer and telling him he knew he was responsible for her condition, and calling on him "to come here at once," pay the expenses, etc. Immediately upon receiving this letter he first went to his friends, then "post haste" to his lawyer, with it. His lawyer at once wrote or advised an answer, which he signed and sent, denying his guilt and telling him, "I desire not to hear from you again." But he did hear again. In about a week her father wrote him he was not surprised at his denial, but, if he was not the man, "why was there *Page 528 so much secrecy," and denouncing in unmeasured language the villain who took advantage of his child, and "when you prove to me you are not guilty (how?) by helping to bring the guilty to justice, then I am willing to walk from here there and get down on my knees at your feet and ask your forgiveness." Under the circumstances, if he had not been the guilty one, every impulse and dictate of honest manhood would have irresistibly compelled him to hasten to Cassie and her father, and not only establish at once to her father his innocence, but also help "to bring the guilty one to justice." He did neither — did absolutely nothing to ferret out, if another, and bring that other to justice. He swore he made no reply to her father's last letter and made no explanation whatever to him.
The said letter, the admission in evidence of which is under discussion, was directly and expressly invited by appellant, and after its receipt, was unquestionably acted upon by him. On November 22nd, he wrote Cassie: "Will answer your letter which came to hand a few days ago. Was glad to hear from you but sorry you had been sick." (She had been sick from confinement on October 29th.) . . . "I am the same fellow (as) when you saw me last, and I want to noe (know) now Cassie (if) you want to come home, an (and) I want to know what is the matter with you, an (and) just as soon as I get the news I will send you the money to come on, an (and) noebody never has read your letters and wont. Your Pa has rote some letters here an (and) I want to noe (know) if you are all right an (and) I want to know just what is the matter." On November 24th, immediately upon receipt of this letter, as therein invited and requested, she answered him. The reading of her answer just here, which is copied in full in the original opinion, will demonstrate that she therein in plain and unequivocal language accused him directly of the crime charged herein. It needs no comment to show this. That he then acted on what she stated therein, has been clearly shown above. From the very frequent correspondence between them, the jury was clearly justified to believe he answered her letter, and there can be no doubt that he did. So that under all the authorities her letter and his failure to answer and deny her accusation was without doubt admissible as an admission by him of his guilt.
The only other question to be considered is his attack on the court's charge about this letter. I copied this charge in the original opinion. As I have shown, this letter was unquestionably properly admitted to impeach Cassie Dunn, if for no other purpose. Its statements directly and positively charged appellant with being the father of her child and guilty of incest with her, for which he was indicted and then on trial. He swore he did not receive the letter. The other testimony was amply sufficient to show that this testimony by him was false, and that he did receive the letter. The court, however, could not himself decide that appellant's testimony was false, and that he did receive the letter, but it was imperative upon the court to submit that question to the jury, *Page 529 made so by appellant himself. And it was necessary for the court to submit it on both theories — one, in case he had not received it, the other, in case he had received it. The court, in said charge, in very clear, apt and appropriate language, which could not be misunderstood, did submit both theories. The charge is copied in full in the original opinion. It is in a separate paragraph. Appellant made no objection to the first part of this charge. He objected to the last three lines of it only, beginning with the word "however." The court qualified and explained his bill presenting this question, as follows: "I desire to state that the charge in question was one given to the jury for the purpose of protecting the defendant's rights before the jury in their deliberations, in the event they should find that the letter in question was not received by him. The court did not inform the jury, as is contended by the defendant in the bill, that the letter was a criminative fact against the defendant, nor did it charge or intimate that said letter proved defendant's guilt; on the contrary, the court told the jury that it was for the jury to determine what weight they would give, if any, to said letter, calling their attention to the fact that the jury were the exclusive judges of the facts proven, of the credibility of the witnesses and of the weight to be given to their testimony. I thought the charge on the whole was a proper one on the subject in question, and it was designed and intended for the benefit of the defendant's rights and to safeguard the same before the jury."
It is undoubtedly the settled law of this State, established by a great many decisions of this court, and not questioned by any of them, as tersely and correctly stated by Mr. Branch in his Criminal Law, section 873, page 556, as follows: "Proof of contradictory statements offered by the State to impeach a witness, where the same could be used by the jury to establish any fact in the case, other than as affecting the credibility of the witness, should be limited in the charge. . . . If the State impeaches her own witness by proof of contradictory statements, and the same could be used by the jury to establish any fact in the case, other than the credibility of the witness, such proof should be limited in the charge. . . ." This doctrine is held and applied all the time by this court. Mr. Branch cites some of the cases only. A great many others could be cited but it is unnecessary. Cassie Dunn's statements in the letter could have been used by the jury to directly establish that appellant was guilty of incest with her. Hence, it was the imperative duty of the trial judge in his charge to tell the jury, as he did, that: "If you do not believe from the evidence, beyond a reasonable doubt, that defendant received said letter, you will not consider it for any purpose, except to aid you, if it does, in determining the credibility of Cassie Dunn, but may consider it for that purpose only." It thus being necessary for the court to tell the jury what they could do about considering the letter if not received, it became his further duty to tell them what they were authorized to do if it had been *Page 530 received. The State is just as much entitled to a full and fair charge presenting all the contingencies as the defendant. So that I think it was the duty of the judge to tell the jury, as he did: "However, if said letter was received by the defendant, you will determine the weight you will give to it under the instructions given you in the last paragraph of this charge." Said last paragraph was: "You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony, but you are bound to receive the law from the court, which is herein given you, and be governed thereby." This should always be given in a felony case (sec. 789, Wh. Ann. C.C.P.) and is universally approved by this court.
I do not understand how anyone could seriously contend that said sentence beginning with "however," is on the weight of the evidence. It is not, and can not be even misconstrued to be. There is no intimation, directly or indirectly, by the judge ofhis opinion of the letter, nor of what weight, if any, he thought should be given to it by the jury. He told them the law — "You are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to the testimony." He left all to the jury and in no way intimated what he even thought about it. Such a charge as this has expressly been held proper by this court in Chas. H. Proctor v. State, 54 Tex. Crim. 261. The charge there was: "If you find that the State has introduced any act of W.R. Proctor done by him in the absence of Chas. H. Proctor, after the commission of the homicide, then you will not consider it in finding your verdict, but you will wholly disregard it unless you find from the evidence beyond a reasonable doubt that Chas. H. Proctor directed said W.R. Proctor, in which event you will consider it as legal evidence inthe case against Chas. H. Proctor." (Italics added.) See also Morris v. State, 39 Tex.Crim. Rep. (375-6); Terrell v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 1088.
Appellant cites and relies upon Rice v. State, 49 Tex. Crim. 584. I have carefully read and studied that case. In my opinion the condemned charge therein is wholly unlike the charge herein. The opinion of the court therein demonstrates that. In my opinion the motion should be overruled. I protest against the case being reversed.