ON state’s motion for rehearing.
KRUEGER, Judge.The State, in its motion for a rehearing, seriously contends that we erred in two respects in holding that Appellant’s Bill of Exception No. 6 reflects reversible error: First, because the bill is deficient, vague and indefinite; and second, because the testimony of Francis Potts, which the court, upon objection by the State excluded, was admissible. The bill within and of itself is deficient, but it refers to pages 94 and 63 of the statement of facts and makes the same a part of the bill which, in our opinion, entitles it to consideration.' Jack Liston was offered as a witness by the State. He testified on his direct examination that on Sunday before the deceased was killed on Friday, he and Isaac Whiting accompanied the deceased to Houston. That on Wednesday before the killing, he had a conversation with the appellant. That in this conversation appellant told him that he, appellant, was going to kill the deceased. That appellant asked him if he, Liston, had seen his, appellant’s, wife in Houston. The witness told him that he had not. On cross-examination he testified that after they arrived in Houston on Sunday he, the witness, spent the night at the home of an aunt; that Whiting spent the night at a hotel and the deceased said he was going to spend the night at the home of Rev. Lucas. The witness denied having told appellant on Wednesday or Thursday preceding the killing that the deceased had *166spent Sunday night with appellant’s wife at the home of Francis Potts. Appellant testified that the day before the killing the witness, Jack Liston, told him that the deceased spent the preceding Sunday night with his, appellant’s, wife at the home of Potts.
From the foregoing statement it is obvious that the testimony of Liston and that of appellant was in sharp conflict. Appellant then offered Francis Potts as a witness, by whom he would have proved, if permitted by the court, that appellant’s wife was rooming at Potts’ home; that on Sunday night preceding the Friday of the killing, the deceased came to the Potts’ home and asked to see appellant’s wife. That he, Potts, admitted deceased and directed him to the room occupied by appellant’s wife where he spent the night with her, but he did not inform appellant or any other person of this occurrence.
It was the State’s theory that appellant killed the deceased without cause or provocation. It was appellant’s contention that he killed the deceased because the deceased had alienated his wife’s affection and broken up his home.
In view of the sharp conflict in the testimony on a vital issue in the case, it occurs to us that the excluded testimony became material in that it gave weight and verity to appellant’s testimony and tended to sustain his contention of illicit relations existing between his wife and deceased and that he had been informed thereof. With this testimony before the jury, is it not reasonable to conclude that the jury might have given more credit and greater weight to the appellant’s theory and found him guilty of murder without malice instead of murder with malice?
In the case of McAnear v. State, 43 Tex. Cr. R. 518, 67 S. W. 117, the appellant found an unsigned letter in a dresser drawer of his sister’s room. The general tenor thereof convinced appellant that a married man had written it. On the day of the killing appellant went into the store where the deceased was employed and discovered the deceased talking with his, appellant’s, sister. This led him to believe that the deceased was the author of the unsigned letter. On the day of the killing the deceased invited appellant and his brother to go home with him. After they arrived at home, the deceased picked up a feather bed and cover, remarked as he did so, that it was too hot to sleep in the house and dragged it out on the gallery. Appellant said to the deceased, “We did not come here to stay all night.*** We have reason to believe that you are the party that has been writing to our sister, and who stayed with her all of Tuesday *167night.” To which deceased replied, “Yes, by God; it was me, if you want to know the truth about it!” Whereupon appellant shot him five times. Appellant testified he shot deceased because he had ruined his sister, etc. Upon the trial appellant offered to introduce in evidence certain letters, together with a “cundrum” found on the body of the deceased shortly after he was killed. The letters appeared to be in the handwriting of the deceased and one, at least, was in the handwriting of the appellant’s sister. The court excluded these letters on the ground that appellant had no knowledge of the letters prior to the killing; and appellant’s sister stated that she had not seen either of the letters except the one she had written. This court in passing on the question said: “This testimony, as stated, if true, would have demonstrated to the jury, beyond any reasonable doubt, that the cause of the killing was the improper relation of deceased with appellant’s sister. The fact that she testified to said relationship upon the trial, and the fact that appellant testified that deceased admitted the relationship to him, would not be a basis or cause for the exclusion of letters found in his trunk or in his possession, where such letters are identified as having been written by deceased or by appellant’s sister. Said testimony would be strong and cogent corroboration of the oral testimony adduced by appellant * * * and clearly should have been admitted.”
In support of what we have said we refer to Bereal v. State, 88 Tex. Cr. R. 138, (141) ; Powers v. State, 88 Tex. Cr. R. 457, (460).
Having reached the conclusion that the case was properly disposed of originally, the State’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.