In his motion for rehearing appellant urges that we were in error in holding that the alleged variance in name between that of deceased as alleged in the indictment and as the same appears in the proof could not be raised in motion in arrest of judgment. We do not find this question raised in any other manner in the record. There appears to have been no objection interposed to prove that deceased's name was Bertha Snooks and no special charge requested incident to such alleged variance. We find upon the bill of exception complaining at the overruling of the motion in arrest of judgment the following notation by the trial judge. "The name of the deceased was used both ways all through the trial and no objection reserved by defendant." In looking to the statement of facts we find that the witnesses referred to the surname of deceased as both "Snook" and "Snooks" and that a brother of deceased gave *Page 520 his name as "Snooks." This examination of the statement of facts, together with the explanation of the trial judge on the bill of exceptions leads us to believe that there is no merit in the contention urged by appellant, and that the record sufficiently shows that the deceased was known both as Bertha Snook and Bertha Snooks.
Appellant complains that a certain letter designated as letter number five was inadmissible even for the purpose of comparison of hand-writing as it was a privileged communication written by appellant to his wife, Mrs. Minnie Young. We have been unable after a diligent search through the record to find where any objection was reserved relative to such letter on that account. Appellant's bill of exception number 4 appearing on page 58 of the transcript apparently reserves exception to the introduction of letters numbers, 1, 2, 3, 4 and 5, but the bill sets out only letters 1, 2, 3 and 4, and the bill appears to complain because the four letters were admitted in evidence without sufficient proof that they were in the handwriting of appellant. No mention is made whatever in such bill of letter No. 5 except in the beginning thereof. In bill of exception No. 7 it appears that defendant objected to the introduction of letter No. 5 but the only ground stated is that it was "improper, irrelevant and immaterial testimony, and not the proper manner in which to prove handwriting." If there is any other reference in the record to letter designated as No. 5 or any further objection urged to the admission thereof we have not discovered it, and the ones mentioned are not sufficient to present the question urged by appellant in his motion for rehearing.
Appellant in his original brief and also in his motion for rehearing complains because the court permitted one C.W. Carlisle to testify relative to certain letters which are asserted in the brief and motion to have been written by one Blackie Lewis for appellant while the latter was confined in jail. The bill relative to the matter and the only one with reference to it is in its entirety as follows:
"Be it remembered that upon the trial of the above entitled and numbered cause, the Court overruled the motion of the defendant to strike from the record and to instruct the jury not to consider any testimony with reference to what Floyd Young, the defendant, claimed he had done while he was under arrest, in jail and in the custody of the sheriff, especially with reference to letters which witness C.C. Carlisle testified had been written for the defendant by one Blackie Lewis, a cell mate of the defendant while he was in jail, because the testimony as to the writing of such letters was hearsay, had not been properly identified, and were written, if written at all, or caused to be written while the defendant was a prisoner in jail and under duress, and because the writing of same, if same were written, was immaterial, irrelevant and not admissible for any purpose." *Page 521
It is not claimed by the bill that any letters written by Blackie Lewis for appellant while in jail were introduced in evidence; if so the bill is incomplete for omitting the letters. As we analyze the bill, appellant was seeking to have the jury directed not to consider testimony "with reference to what appellant claimed he had done while under arrest with reference to letters which Carlisle testified had been written for appellant by Blackie Lewis." The bill makes it appear that appellant was making some claim relative to these letters. It is not sufficiently specific to apprise us of the direct point at issue. If appellant was making some claim about the letters he may have opened up a subject which it was entirely proper for the State to pursue. The bill fails to inform us whether the information from the witness Carlisle was elicited by the State or appellant. What an accused does or says or omits to do or say while in jail, without warning, if of a criminative character ordinarily cannot be shown by the State. Brent v. State,89 Tex. Crim. 544, 232 S.W. Rep., 845; Gardner v. State, 34 S.W. Rep., 945. (See many other cases collated under Section 64, pages 38-39, Branch's Anno. P.C.). It was not our intention by any expression used in our original opinion to change or modify the rule. We were perhaps unhappy in our choice of words, and instead of saying "we think the evidence was admissible," it would have been more appropriate to say that it is not shown by the bill in question that the matter was inadmissible. We are bound by what is shown in the bill of exception, and the same cannot be supplemented by the briefs to add to or take from it.
Believing our former opinion properly disposed of the case by an affirmance, the motion for rehearing is overruled.
Overruled.