This case was affirmed some time ago, and Presiding Judge Prendergast in his opinion explains, in a great measure, the delay in acting on the motion for a rehearing. The writer of this opinion wants to admit that he conferred with and discussed with the Presiding Judge the opinion in this case before it was handed down, and he at that time concurred with him in the opinion that the case should be affirmed, but a further study of the record, the briefs filed by able counsel, and the authorities bearing on the questions involved, has led him to the opinion that he was in error. If he had written the original opinion he would feel less reluctance in now holding that the record presents error, because he, in a measure, feels that he may be in part responsible for the errors in which he now believes appear in the holding in the original opinion, and he wishes to assume his full responsibility for such opinion. Yet, while doing so, he feels it his duty, as a member of this court, when convinced of his error, he should unhesitatingly admit his error, for every man in this State, regardless of how guilty he may be (if guilty he be) is entitled to a trial in accordance with the settled rules of law, and if he has not received such a trial, to have his case reversed in order that he may be accorded a fair and impartial trial, and his guilt or innocence passed on by a jury only on evidence legally admissible.
We think the court erred in holding that the State could impeach its witness Miss Cassie Dunn. The State called her as its first witness and had her testify:
"My name is Miss Cassie Dunn. I suppose I am a daughter of Tom Dunn. My mother was Bettie Dunn. She was a sister to Alfred Hollingsworth. For the past four or five years I have been living and making my home with Uncle Alfred Hollingsworth. He lives up close to Prairie View, up close to Hurst in Coryell County. When I went to Uncle Alfred's to live the family consisted of himself and two boys, Roy and Joe. Roy and Joe stayed at home two years. When the boys married Joe left home and Joe went right straight and Roy stayed at home till January. They have been married two years last October. Yes, I am speaking of the old man's two boys, Roy and Joe. They married in about October, 1912. They have been living to themselves ever since they were married except Roy stayed there at his father's *Page 509 from October to January and then left. Roy left there January 1, 1913. He has been away the first of this year makes two years. After the boys left Uncle Alfred and myself and Fannie constituted the family. Fannie was not there till two years ago last August. Fannie came there in August before the boys married in October. Fannie came there two years ago last August. She came in August, 1912. I am twenty years old. Was twenty years old the 18th day of last June. Fannie and I both did the housekeeping and cooking and washing dishes and milking and things of that kind for Uncle Alfred. We both did it together. Sometimes Fannie would leave there and go to her other uncles and visit, but she did not go very often and did not stay very long. Sometimes she would go and stay a week or two at a time. She did not do that very often. My uncle had five brothers that lived up in that neighborhood and Fannie would go and stay with them whenever she wanted to. When Fannie would go away that would leave Uncle Alfred and myself there alone. When Fannie was gone I did the milking and cooking. I kept house and made up the beds, etc. I attended to all that when she was not there. When Fannie was not there she did not do any of the work and of course I did it, but when she was there she assisted me in it. I did not during that time have any sweethearts or beaux that went with me. Did not have any beaux or keep company with anyone. I went to parties and gatherings and singings and things of that kind during that time, but goodness I don't know how often I went to them. I went a good deal, for a while and then I did not go so often but I went enough I suppose. I went a good deal the first two years, before the boys married. After the boys married I did not go so much because I did not have anybody to go with me. When I did go Uncle Alfred and first one and then another would carry me. Uncle Alfred carried me to church but he did not carry me to parties. He would carry me to town occasionally. We lived four or five miles from Turnersville. That is not where we did our trading. We did it at Hurst and Clifton. Clifton was about fifteen miles from where we lived. That is a larger town than Turnersville. I went home and left my Uncle Alfred's house on the 19th day of June, 1914. Uncle Alfred treated me just like he would one of his own children all the time I lived there. He treated me right — just like he would his own girl. Anything I wanted I got it. Dresses or anything else. Q. Do you love your Uncle Alfred? A. I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. I love every one of my uncles.
"I was pregnant when I went home in June, 1914. I had been at home about a month before my people found out that I was pregnant. Dr. Bailey is the man that told them about me being pregnant. I was sick and we called in Dr. Bailey to wait on me and he told them what was the matter with me. I have a child now. It was born the 29th of October." This was all her testimony on direct examination.
Why did the State call this witness and have her testify that she *Page 510 lived with appellant; that she loved him better than she did either one of her other uncles; that she and her sister lived alone with appellant. That while she had lived with her uncle (appellant) she had no beaux or sweethearts; that she was pregnant when she left appellant's home in June, and that a child was born to her on the 29th of October, etc.
By the indictment appellant was charged with having incestuous intercourse with this witness — his niece. Were not all the above facts and circumstances elicited from the girl to prove by circumstantial evidence that appellant was the father of her child; that no other person had opportunity, and would not the evidence thus adduced by the State have a strong tendency to show that he was guilty of the charge, if no other testimony was adduced from her? The State having before the trial been informed by the witness that she would testify that another was the father of the child, and appellant had never had intercourse with her, could it adroitly, by not asking her who was the father of the child, adduce testimony from her that would fasten the crime on him, and appellant not be permitted on cross-examination to ask her who was the father of her child and elicit from her the following facts: "Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me," without making the girl his (appellant's) witness? If the State had not known the girl would so testify before they called her as a witness, there is no doubt they could impeach her as to those statements. But the record places it beyond question, and it is in no way controverted that the girl had told the district attorney the week prior that she would testify that Henry Dollins was the father of her child, and her uncle, appellant, had never at any time had intercourse with her, and this was the reason the State avoided asking that question, yet the State called her as a witness and proved all other and different facts it could by her that would tend to fasten the crime on appellant. She testified: "That night when you and Mr. Cobb and my uncle and father all came down there with Mr. Calloway, the district attorney, you all left the room and left Mr. Calloway and I in the room to talk the matter over. I told Mr. Calloway then and there that Henry Dollins was responsible and that my uncle was not responsible." When can the State impeach its own witness? At common law it could never do so, but by virtue of our statute, article 815, it is provided, when facts stated by the witness are injurious to the cause of the party offering the witness, he may be impeached as to such testimony. The only case which we have found that would seem to sanction the action of the trial court in permitting Miss Dunn to be impeached is Blake v. State,38 Tex. Crim. 377. In that case it was held that the party offering the witness need not be surprised by the testimony, if he had good reason to believe that when the witness was called on to testify he would testify to facts beneficial and not injurious to his cause. In this case the State can not and does not contend that it had any reason to believe that she would testify that her uncle, appellant, had had intercourse with her. She had been before the grand jury, and there had refused to testify who was the *Page 511 father of her child, although the record makes it manifest that she at that time knew they were investigating as to whether or not appellant had had incestuous intercourse with her, but after going before the grand jury she had told the district attorney that appellant had not had incestuous intercourse with her, and that Henry Dollins was the father of her child, and with knowledge that she would so testify, the State calls her as a witness and adduces from her facts and circumstances which would tend to show that appellant was guilty of the incestuous intercourse, knowing at the time if asked the question she would most emphatically deny such to be the fact, and for this reason propounds no such question. The State desired the jury to believe her when she testified to facts and circumstances tending to show his guilt, and introduced her to prove those facts and circumstances, but claims the privilege of impeaching her as a witness when she testifies to a fact to which they knew she would testify that would show that no such fact should be deduced from the facts and circumstances that they had called her to prove. In Oats v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 1194, we held that under such circumstances a witness could not be impeached, and we believe the rule there announced applies to the State as well as to the defendant. And the identical question here involved was passed on by this court in Perrett v. State,75 Tex. Crim. 94, 170 S.W. Rep., 316, being an incest case, and it was there held: "The State will not be permitted to put a witness on the stand, knowing that the testimony would be adverse, in order to get in another statement which would be beneficial to the State. If the State had expected her to swear to the intercourse, and she had denied it, then perhaps the prosecution might have introduced this testimony by way of impeachment, but not so when the State was fully aware she would not so testify when placed on the witness stand." And in Scott v. State, 20 S.W. Rep., 549, this court said: "The statute is for the protection of those whose cause is unexpectedly injured by the witness." The State, knowing she would testify that appellant had never had an act of intercourse with her and that Henry Dollins was the father of her child, yet called her as its first witness to prove facts and circumstances that would lead the jury to find that he had had intercourse with her. This was the whole purpose and sole purpose of the testimony adduced from her by the State, and the purpose of introducing her testimony before the grand jury was not to show that the witness was wholly unworthy of belief, but that appellant was guilty of the crime. The statement that Henry Dollins was the father of her child, and that appellant had never had intercourse with her in nowise conflicted with her testimony before the grand jury, except in so far as the circumstances stated before the grand jury might have a tendency to show appellant's guilt. When before the grand jury she refused to state who was the father of her child, and with whom she had had intercourse. Her testimony on this trial in nowise conflicted with that statement. We are, therefore, of the opinion that the court erred in admitting the statement made by the witness before the grand jury to impeach her. And also the *Page 512 letter written in November, 1914, by her, in so far as it was admitted to impeach her testimony given on this trial. But if in error in so holding, as to it being admissible to impeach her, then we are called on to pass on the question of whether or not the letter was admissible in evidence as tending to show the guilt of appellant, and could be considered by the jury for that purpose if he received it. The court specifically in his charge authorized them to so consider it, if they found that he received the letter. We will not pass on the question as to whether or not a letter of this character is admissible under any circumstances, but simply hold that under the facts of this case such letter was not admissible as original testimony to show that appellant was guilty of the crime of incest. Appellant's counsel have filed a very able and exhaustive brief, contending that under no circumstances could such a letter be admissible as original testimony tending to show the guilt of the person on trial. This brief will be published in connection with this opinion in the official reports. Presiding Judge Prendergast exhaustively reviews the authorities which would tend to hold that such letter is admissible under certain circumstances as original testimony as tending to show the guilt of the accused. We do not think the facts of this case bring the letter within the rules of law cited by our Presiding Judge. He cites Wigmore on Evidence, section 1073, and other sections. Mr. Wigmore states, "the different situations (in which such instruments become admissible) may be grouped under four heads: (1) Documents seen; (2) documents found in possession; (3) documents of demand, received but not answered; and (4) documents made use of." And in dealing with the third says: "The failure to reply to a written communication may sometimes suffice to permit an inference of the party's assent to the correctness of the statements made therein. But the inference is not ordinarily so strong; and judges have always pointed out that the failure to reply in writing to a written communication does not have the same significance as a failure to reply orally to an oral communication. So far as any definite rule is concerned, it seems impracticable, and the precedents indicate that each case must stand upon its own facts." Under this text he cites Hill v. Pratt, 29 Vt. 119, which holds: "It would seem that the rule has never been extended to unanswered letters, particularly when the fact stated has relation to past transactions and upon which no future action of the party is contemplated." Many other cases will be found cited under this section of Wigmore, and they make it evident to our mind that under the rule as stated by that author, the letter in this case was inadmissible. The father had written appellant in July charging him with being the father of his daughter's child. Appellant replied at once, indignantly denying the fact. When the charge was renewed in November, why was he called on to reply again, having denied it when first charged by letter? Is one compelled to answer letter after letter, if he has answered the first denying the charge, else the subsequent letters will be admissible as an admission of guilt? We do not think so. The most that can be said, under the facts in this case, is that the girl *Page 513 wrote the letter, and appellant received it. He in no way acted on the letter. He denies ever having received it, and while it may be said the testimony would support a finding that he did receive it, yet if he did do so, all he did was to destroy it and make no answer thereto, having already written to the girl's father denying the accusation. This was but an unsworn statement of the girl contained in a letter. This could legally prove no fact. Appellant can be said to have completely and entirely ignored the letter. It may be that the State could have asked the girl if she did not write such a letter to appellant and he not answer it, on the theory that when one is charged with crime his conduct and failure to act may be considered as evidence against him, but this would not render the letter admissible as evidence that he was guilty of the crime. It is his act, not hers, which the law considers as evidence of his guilt. The letter is copied in the original opinion, and we do not, therefore, deem it necessary to here copy it, or state its contents. It charged appellant with being the father of the child. The witness Cassie Dunn testified on the trial that she wrote this letter and gave it to her father to mail. Her father testified he took a copy of the letter and mailed it. This copy was introduced in evidence. After testifying she wrote the letter, Miss Dunn testified, when asked if the statement contained in the letter were true or false: "It was false. I told you once that the statement in the letter as to my uncle being the father of my child was false." In his charge the court tells the jury if they find that the defendant received this letter they would be authorized to consider the statements contained therein in passing on the guilt or innocence of appellant. We know of no rule of law which would authorize an unsworn statement of a witness to be considered as evidence of one's guilt, where the witness swears on the trial that the unsworn statement is untrue. Such statement may be used at times to impeach a witness, but never to prove a fact against a person on trial. The witness swore the statement contained in the letter, that appellant was the father of her child, was not true. It may be that they conspired and concluded to acquit appellant; that her testimony on the trial was untrue, but it is only testimony which some witness swears on the trial is true which can be considered in passing on the guilt or innocence of the person accused of crime. An unsworn ex parte statement is never evidence of that fact. Attached to the motion for a new trial is an affidavit of this girl in which she swears: "I further state that I wrote the two letters which my uncle had and which were offered in evidence upon the trial of his case after my child was born, and also one which my father copied under compulsion from my father. My father, after the birth of my child, told me I had to write these three letters or he would whip me. I did not want to write them for they were not true, but in my condition I thought I had to do it. I did not know why my father so insisted upon my writing these letters until since I have come back home. Recently my stepmother went to Abilene to visit, and before she left she told me not to visit *Page 514 Mrs. Guy Thomas. After mother left Mrs. Thomas came to our house and told me that the reason my father made me write the letters was, that my stepmother had threatened to leave him if he did not. Mrs. Thomas told me that my stepmother told her that she had told papa that if he did not make me lay my condition on Uncle Alfred she would leave him. She also told Mrs. Thomas that if I would lay it on Uncle Alfred, papa could get a thousand or fifteen hundred dollars out of Uncle Alfred to keep it out of court. I never told any of this to anyone until after the trial of Uncle Alfred. I did not want to do it on account of papa."
It may be that appellant is guilty, as is so strenuously insisted on by our Presiding Judge in his opinion overruling the motion for a rehearing. This we do not care to discuss, nor express an opinion on, but we do hold that no person's liberty ought to be taken away from him and he branded as a felon upon the unsworn statement of a girl contained in a letter, which she swears is not true, and which, in affidavit attached to a motion for a new trial, she swears she was compelled to write by her father while she lay sick shortly after child birth, and which she says was written to obtain money from appellant. The law does not sanction blackmail any more than it does the crime of incest. We do not think anyone could read this record and say that unless the jury had been authorized to consider this letter of Cassie Dunn as evidence of the guilt of appellant, the jury would beyond question have found appellant guilty and assessed against him the highest penalty known to the law for the crime of incest.
Appellant is a man fifty-nine years of age. He had lived in the same community for twenty-eight years immediately preceding his trial. His wife had been dead for twenty years. He had raised a family of boys and girls, and when he offered to prove by his neighbors that during all these years he had lived the life of a peaceable, law-abiding citizen and a virtuous man, the State admitted as a fact "that the defendant has been a peaceable, law-abiding, quiet citizen all the time that he lived in that community; that his reputation up to the time of this occurrence has been that of an honest, upright and virtuous citizen." It may be that in his old age he has committed this crime, and if so the punishment is none too severe, but before the writer can consent that his reputation of a lifetime of upright citizenship be taken from him and he incarcerated in prison walls, it must be done upon testimony which the law says is legal and competent and not upon unsworn statements of the girl, which she swears on the trial are false and untrue.
There are other questions in the case, and especially the first application for a continuance, which the writer thinks present error, but we do not deem it necessary to discuss them. The witnesses for whom the continuance was sought can be had on another trial, if granted, and if not a discussion of that question would be of no avail.
Being of the opinion that at least that portion of the charge of the court which authorized the jury to consider the letter written by the girl as evidence of appellant's guilt, under the facts in this case, presents *Page 515 error for which the judgment should be reversed, we think the motion for a rehearing should be granted and the judgment reversed and remanded for another trial.
As before stated, upon the other questions presented not herein discussed, the writer expresses no opinion, as he does not deem them essential to a disposition of the case.
The motion for a rehearing is granted, the affirmance is set aside, and the judgment is reversed and the cause remanded.
Reversed and remanded.