dissenting:
I respectfully dissent from the majority opinion for the reason that there does not appear to have been any *839reversible error committed during the trial of this case. The only ground upon which the case was reversed is a letter written by the defendant. It was a voluntary act on the part of the defendant known by him before the trial and by his counsel soon after it first became known or came to the attention of the State.
The prosecuting attorney did not violate any order of the court by not delivering the letter before the trial because he did not obtain the letter until during the trial. The letter was not withheld from the defendant, but, to the contrary, he was apprised of the letter and it was turned over to his counsel during the trial. The letter does not come within the purview of the principle contained in the cases of State v. Smith, 156 W.Va. 385, 193 S.E.2d 550; United States v. Keogh, 391 F.2d 138 and Brady v. Maryland, 373 U.S. 83, and, furthermore, the contents of the letter were practically the same as the other evidence introduced in the trial of the case.
It is clearly not within the ruling in the case of Hamric v. Bailey, 386 F.2d 390, relied on in the defendant’s brief, because it was known and disclosed before the defendant’s evidence was completed and the letter was used by the defendant in the examination of the witness called to testify for the defendant.
For the above reasons, I would affirm the judgment of the Circuit Court of Jackson County.