ON MOTION FOR REHEARING.
LATTIMORE, Judge.Upon mature consideration we are of opinion that, we erred in directing a reversal of this case for the admission of two letters, marked for identification “G-l” and “G-2.” We note that letter G-l was not allowed to go to the jury, it being admitted for no other purpose than as a basis for comparison with the handwriting of the letter G-2. Mr. Pool testified that on March 5, 1932, he was jailer at Henderson, and had appellant in custody, and that appellant on that date handed to him the G-l letter, which was addressed to Robert Rose and family, Navasota, Texas, General Delivery, and on the envelope of which appeared the following: “After five days return to W. R. Rose, County Jail, Henderson, Texas.” The letter contained nothing material to this case, and concluded as follows: “Write more next time. Answer soon. As ever, Bill.” Underneath the word “Bill” was written the following: “W. R. Rose, Henderson, Texas.” Mr. Pool, on cross-examination, said he did not see appellant write the letter, and did not know that he *383would know appellant’s handwriting, but said positively “I know that Bill Rose wrote that letter and gave it to me to mail.” We have no means of knowing how the witness knew that appellant wrote the letter, but he affirmed this as a fact, and this court can not enter into any speculation in order to hold the letter inadmissible. It might easily have been that within Mr. Pool’s knowledge no one else was in the cell or jail but appellant. We decline to speculate or imagine. The witness swore that he knew that appellant wrote the letter, and this established it as a genuine writing, hence usable as a standard of comparison.
Nor do we think the fact that appellant wrote it while in custody and unwarned, would make it inadmissible as such standard. There is an utter lack of anything or everything which would call for its rejection as purely a standard of comparison, under our statutes relating to confessions. What appellant therein said was not introduced. The only thing in evidence, even before the court, was the manner and form of the writing. This question first seems to have come before this court in Williams v. State, 27 Texas App., 471, opinion by Judge Willson, in which it was held not error to introduce as a standard for comparison of handwriting only, the signatures of the accused to applications for continuance and for attachments. This court said: “The applications were not read in evidence, and the introduction in evidence of the signatures thereto did not violate the rule which excludes a confession of a defendant made while in jail or other place of confinement.” Again in Hunt v. State, 33 Texas Crim. Rep., 252, an application for attachment signed by the accused while under arrest and unwarned was admitted over objection and used as a standard of comparison. The accused contended that the signature made under such circumstances could not be so used under the rules excluding the acts and conduct of the accused when in custody and unwarned. Presiding Judge Hurt said as follows: “To this proposition we do not assent. The act of signing the document was neither an admission nor a confession by defendant. It was not an act tending to show guilt. It does not come within the letter or the reason of the rule. The fact that defendant was in custody when he signed the application would not likely affect the signature in any manner so as to render it unfit for use as a standard of comparison. That he did sign it was no evidence against him. There was no error in this matter.”
In Ferguson v. State, 61 Texas Crim. Rep., 152, upon citation of the Hunt case and quotation therefrom, Presiding Judge Davidson held that the signature of the accused to an appear*384anee bond while in custody and unwarned, was usable as a standard of comparison. See, also, Jones v. State, 73 Texas Crim. Rep., 152. In the Kennison case, 97 Texas Crim. Rep., 156, when the court was constituted as at present, the authorities above referred to were discussed and on the facts of that case differentiated. Said case on its facts showed that the accused was brought from the jail to the office of the prosecuting attorney. His presence there was not voluntary. He was caused to write several words which were later admitted, over objection, apparently as standards of comparison with the alleged forged instrument. Judge Hawkins, referring to the authorities above mentioned, says: “In each of them the accused of his own volition had signed papers in preparation of his case for trial or to secure his release from custody. * * * How different in the present case; here appellant is charged with forgery and with passing as true a forged instrument, either being offenses which involve the making of an instrument in writing, and for the very purpose of securing from him evidence tending to show his guilt, the prosecuting officers procure appellant’s removal from the jail to their office, and under their direction secure from him not his signature alone but a writing of many of the identical words in the alleged forged instrument, evidence later used to bring about his conviction.”
There is not a word in what is thus said in any way contravening the admissibility of the letter G-l for purposes of comparison, it being the result and creature wholly of appellant’s volition without coercion, suggestion, or pressure from any outside source. It was not intended by this court in what was said in the Kennison case, supra, to convey the idea that the willing or voluntary signing by the accused of a document for use in some way in his case while he was under arrest, would derive from its intended use any element of admissibility. Such contention would be manifestly unsound and wholly aside from the question being discussed in said case. Another case by this court discussing the same principle is Bell v. State, 99 Texas Crim. Rep., 63, in which Judge Hawkins cites the authorities herein relied upon with approval, in holding admissible a document signed by the accused while before a grand jury as a witness. The question in that case was not the admissibility of documents signed by the accused while under arrest, but of documents signed while before a grand jury, the ground of objection being that this was divulging the secret proceedings of a grand jury — a somewhat analogous question. In Long v. State, 120 Texas Crim. Rep., 373, we upheld the doctrine of the *385cases here relied on. We have no doubt of the admissibility of the letter G-l as a standard of comparison of handwriting.
Going back to the G-2 letter, there is no sort of doubt of its admissibility if the G-l letter was admissible. A banker of experience compared the two letters and said they were in the same handwriting. Words in each appear misspelled the same way. Identical expressions, characteristic of the writer in identifying him, are found in both.
Wholly aside from the establishment of its admissibility as a result of such comparison, however, to the writer the admissibility of the G-2 letter is clear from the facts in evidence. Appellant’s brother-in-law, and a strong witness for him to his alibi, with reluctance admitted the receipt of letter G-2 about November 16th, 1931, but coupled this admission with the statement that he did not do the things “Bill Rose asked to be done in that letter.” Evidently the exhibition to him by state’s counsel of said letter, when he was recalled by the state after having testified for the defense to a complete alibi for appellant, was a surprise. He had lost the letter at McLean. It was found by the hotel man, Mr. Williams, who had sent it to the state’s attorney at Henderson. No mention of said letter was made by the state in making out its case in chief. No question regarding it was asked Rhodes when on the stand for the defense, in making out appellant’s alibi in exact accordance with the requests in the letter. No question about the letter was asked other witnesses for the defense, including those named in the letter as those whom the writer desired Rhodes to see and whose assistance he was requesting in making out his alibi; as one after another of these took the stand and apparently followed the suggestions in the letter, each and all swearing that beyond peradventure appellant came to McLean, Texas, 600 miles from the scene of the assault, on or before September 10, 1931, and was not away from said place as much as a day until October 14, 1931, when he left to go back to Marshall with the body of young Foster who had been killed in a truck accident. Almost all these witnesses were armed with incidents occurring on the very day of the assault, September 29, 1931. The witnesses were testifying nearly a year after that date. One of them remembered the hour at which appellant arose on the morning of September 29th. Another remembered that he and appellant ate hot cakes together that morning at a cafe, and that he ate a steak for supper that night at the same place. After some twelve of these witnesses had tracked each other down the alibi path, the defense rested.
*386The state after calling back two of the main alibi witnesses and having them admit that they were under indictment for felonies, called back Mr. Rhodes, brother-in-law of appellant and a strong witness to his alibi. He was asked if he had had any correspondence with appellant after the latter left McLean. He said he had had no character of such correspondence. Asked if he received a letter from appellant, he said he did not remember it. He admitted that his initials were S. W., and that his post-office address on November 15, 1931, was box 396, McLean, Texas. He also said that at that time appellant lived at 207 Lake Street, Marshall, Texas. Shown the G-2 letter, he said he could not swear it was written by appellant. He said: “That is his name. That is his signature. Yes, that is his signature. You have asked me if I received a letter on or about the 15th day of November, 1931, from Bill Rose in that envelope, and I will say I can recall it.” He also said: “Yes, after Bill Rose left the city of McLean, Texas, I did receive some character of communication from him. I don’t know that that is the letter I received from him (G-2). Yes, if you read it to me I will know.” Here the jury was withdrawn. The witness then said: “You have read that letter to me in full (Exhibit G-2) under date Marshall, Texas, November 14, 1931, and addressed to Mr. Tex Rhodes, Dear Friend, etc., and that is the letter that I received.” He also said: “I believe that Bill Rose lived at 210 Lake Street Marshall or 207. It is correct that he lived at 207 Lake Street.” Later he again positively admitted getting the G-2 letter while at McLean, which was addressed to S. W. Rhodes, P. O. Box 396, McLean, Texas, and had on the envelope from “207 Lake St., Marshall, Texas.” He said that he got affidavits from Leon Marshall and his wife who were running a cafe at McLean, and that Fat Bentley, — named in the letter,— was running a filling station in McLean. He testified: “He is the man that Bill Rose requested me in this letter to get the gas tickets from.” The G-2 letter is as follows:
“Marshall, Texas, Nov. 14, 1931.
“Mr. Tex Rhodes,
“Dear Friend:
“I will answer your letter I rec. this morning. Sure was glad to hear from you. Well, this leaves me OK, but not out of trouble yet. Well, listen, this is what I want you to do now, and boy be sure and do it, for it is all that will do any good. Well, I told Harry to do some of it. But I have not heard from him yet. Listen, I want you to go around to Bill Cafe and get three meal tickets from him and punch the 3 of them out, and *387let Bill sign my name on them and date one of them on the 29th Sept. That is when that crime happened. Now, what I have got to do is prove that I was out there on that day, and all so the day after and the day before, witch was on the 28th of September. Now, listen, you goe to Fat Bentley and get several gas tickets and tell him to Be sure and Make out several of them so they can show that I was up there that week, Far sure, and tell Fat to keep a carbon copie of them, and tell Fat to swear that I got Gas there on that day witch was the 29th of Sept., and tell him I was driving Miller truck and stick to it, and tell Leon wife to swear I eate 3 meal in Bill Place that day, that is all that will do me any good at all. Boy, they are going to try to put me in the chair far that god damn mess. Boy, I am going to have ever one up there brought here, because I sure am going to need them. You tell every one when that happen. Well, I had my hearing today and they set my bond at $5,000.00. I don’t know who in the hell I will get to make it. It sure is plenty high. They got 2 charges against 3 of us. Well, they did not set the date of trial yet. So, I guess they will come and get me tomorrow and take me back to jail. Now, all I ask you to do is be sure and get thes thing for me. listen, tell Bill Bentley that I ate in there on that day and date this meal tickets about 5 or 6 days apart, but Be sure and date them right and kinder mess them up a little so it will show up, and I did not tell them about this when they ask me a feq question about where I was at and how long I was up there. Well, if I was up there I could fix everything up all wright, But I couldnot leave here. So, I have to get some one there that I can depend on. So, I will ask you to do this for me. The more witnesses I can get, why the better, there is just a few people that realize the trouble I am in, and Boy it is a pretty good frame up to. Old John Taylor is going help prosecute me, and he is going to ask the limit, and I have got to have some pretty good evidence to lay in front of him to. Well, Tex Mama and Ed went to Parris the other day to see what they could do up there about getting uncle Jim to help out a little, and he is broke. Well, I haven’t got no money to hire a lawyer with. All of them lawyers here want from $500.00 and up. Well, I aint got a nickle in this world and I don’t know what I am going to do. Well, I will close this so you get this stuff and please send it back here just as quick as you can. Now, if you dont, why I will be blowed up. Answer back soon.
“207 Lake St.; Marshall, Texas. Bill.”
“The envelope shows post marked L. Rock & Ft. Worth *388train, 15th November 1931 R. P. O. Addressed to Mr. S. W. Rhodes Box 396, McLean, Texas. On back of envelope ‘From 207, Lake St., Marshall, Texas.’ ”
Rhodes having twice sworn that this letter bore appellant’s signature, that he (witness) got it, addressed to his proper address ; that it was signed with appellant’s name, and had appellant’s home address as the return address on the envelope, coupled with the familiar references and exact instructions, which appear to have been in line with what was done after the receipt of said letter — all seem to point unerringly to appellant as the writer of the letter and the instigator of fabricated testimony, and seems clearly admissible.
The state also introduced J. B. Williams, who swore that he was operating the Irvine hotel at McLean, Texas, about the 15th of November, 1931, at which time Rhodes, Zaner, Potter and Bechtold, all of whom were alibi witnesses for appellant, lived at said hotel. He recalled that a young man was killed out there in a truck accident, and that appellant was staying at the hotel and contemplated going back to Marshall with the body. Witness overheard some one talking and thought it was appellant and Rhodes. Appellant was talking of going back to Marshall to the boy’s funeral, and Rhodes said to him: “You had better not go down there; you know damn well they will put you in jail.” Appellant replied that he had been watching the papers and had not seen anything about it. Witness also heard the boys say: “We can prove you were up here.” Something was said like “We could swear you out of hell.” Some one said, “There is enough of us to swear you out of hell.” Nothing was said in that conversation about appellant being in McLean on September 29th.
Being of opinion that we were in error in holding said letters inadmissible, the state’s motion for rehearing is granted, the judgment of reversal is set aside, and there being no other complaint, and the evidence being sufficient, the judgment of the trial court is now affirmed.
Affirmed.