The State has filed a motion for rehearing, insisting that we erred in reversing this case because of the trial court's refusal to receive in evidence the letter purported to have been written by the deceased to appellant's wife while she was at Vernon.
It is contended that the bills of exception upon this subject fail to reflect that the proper predicate to authorize the introduction of the letter was made, in that there was no evidence that the purported letter was written by, or was in the handwriting of, the deceased, and that, if the proper predicate was shown, the contents of such letter were not of such materiality as to require a reversal of the case.
While there is considerable merit in the State's contention that the bills of exception do not reflect that a proper predicate was first laid to authorize the introduction of the letter in evidence, yet we have decided to dispose of the case upon the question of whether or not the trial court's refusal to admit the letter in evidence constituted reversible error.
In considering this question, attention is called to the former opinion in this case, reported in 140 Tex.Crim. R.,143 S.W.2d 949, and to the facts stated therein.
In our original opinion, the trial court's failure to permit the letter to be introduced in evidence was held to be reversible error, primarily upon the authority of McAnear v. State, 67 S.W. 117, 43 Tex.Crim. R.. The State insists that such case did not support the conclusion reached. It, therefore, becomes material to analyze the facts of that case in the light of those in the instant case.
In that case, McAnear found an unsigned letter, addressed to his sister, which "indicated, or tended to indicate, undue intimacy on the part of some one with his sister, * * *"
McAnear conceived the idea that it had been written by a married man. From the stationery or letterhead, he concluded *Page 452 that someone connected with the firm of which deceased was a member had written the letter. A short time after the letter was found, the sister absented herself from home one night, and the next morning McAnear upbraided her for so doing and asked her to tell him who had written the letter found by him, which she refused to do. Thereafter, McAnear, deceased, and McAnear's brother were in the home of deceased, whereupon deceased was told that they believed he was the one who had been writing to their sister and who had stayed with her at night, and that they (McAnear and his brother) wanted to know the truth. Deceased admitted that he was the one; whereupon McAnear killed him. Deceased's admission of his guilt of the charge was the first positive proof McAnear had of such fact. A letter in deceased's handwriting, addressed to the sister, and one from the sister to deceased, were found on deceased's body. In the trunk of deceased another letter was found. As to the contents of these letters, the opinion states that they showed deceased's conduct to be "nothing short of infamous towards the sister of defendant, and the letter of appellant's sister appears to be equally rehensible; * * * *."
The admissibility of the contents of the letters written by deceased was because "both clearly demonstrate, if true, appellant's motive for the killing."
The opinion reflects that McAnear knew nothing of the letters nor of their contents, prior to the killing; hence, the letters themselves could not have been the basis of a motive for the killing. The motive there referred to was, of necessity, that of "the improper relation of deceased with appellant's sister."
The materiality of the contents of the letters consisted in the fact that they corroborated her testimony to the effect that she and deceased had been intimate, for the opinion says: "Said testimony would be strong and cogent corroboration of the oral testimony adduced by appellant and his sister, * * *."
McAnear was convicted of murder in the second degree, under the law as it then existed. It was also the law, at that time, that insulting conduct towards a female relative was, as a matter of law, adequate cause, reducing a killing to no higher grade of offense than that of manslaughter. The contents of the letters tended to establish as a fact the insulting conduct on the part of the deceased, as well as to corroborate the testimony *Page 453 of the sister upon that issue. The admissibility of the letters in evidence is, therefore, demonstrated.
We now look to the facts of the instant case.
The letter here involved contained nothing showing sexual intimacy between deceased and appellant's wife; it went no further than to address appellant's wife in endearing terms such as "My Dear Sweet Darling." There is evidence sufficient to show that, for some time prior to the killing, appellant knew of deceased's conduct towards his (appellant's) wife, and that, for several days prior thereto, he associated with, and was in company of, deceased, and possessed such knowledge, because he testified: "No, Mrs. Childress didn't tell me anything else, but she said they had intercourse with each other that night, and several nights after that. That was the first time I really knew anything about it."
The fact that deceased and appellant's wife had, for some time prior to the killing, been intimate was not a disputed issue in the case. The wife testified to and admitted such intimacy.
As to what occurred at the time of, and immediately prior to, the killing, we find that appellant did not first mention to deceased relative his conduct with the wife. In fact, it was the deceased who first mentioned it and who practically admitted such fact. Appellant registered no resentment, but, according to his own testimony, killed the deceased in self-defense, after the deceased had made a demonstration as if to draw a knife.
It thus appears that the distinction between this case and the McAnear case, supra, lies chiefly in the fact that, in the McAnear case, the contents of the letter there sought to be introduced related to, and were material upon, a defensive theory. In the instant case, no such materiality exists, but, to the contrary, the contents of the letter here sought to be introduced showed conduct on the part of deceased far less reprehensible than that of which the appellant had actual knowledge prior to the killing, and notwithstanding which he continued to associate with the deceased. In addition to this, the admissions of the wife of acts of intimacy with the deceased were before the jury, undisputed and unchallenged by the State. *Page 454
In the light of these facts, we are unable to reach the conclusion that the trial court's failure to permit the appellant to show that the deceased had written a letter to his wife, addressing her in endearing terms, could have resulted in his injury or prejudice before the jury.
From what we have said, it follows that the State's motion for rehearing is granted, the reversal set aside, and the judgment of the trial court affirmed.
ON APPELLANT'S MOTION FOR REHEARING.