It has been called to our attention that the opinion on State's motion for rehearing herein was signed by Judge Davidson, and that upon a former appeal of this cause that Judge was then occupying the position of State's Attorney, and interested in the prosecution of such cause.
The original opinion was discussed by the members of the court, and after such discussion Judge Davidson was directed to prepare an opinion in line with the decided views of the court, no one thinking at such time of Judge Davidson's status upon the prior presentation of this case. The opinion on State's motion for rehearing expresses the views not only of the court but also of the writer hereof, and his name will hereafter appear signed to the opinion, and Judge Davidson's name will be withdrawn therefrom.
Appellant's motion concerns itself mainly with the failure of the trial court to admit in evidence a letter directed to appellant's wife and signed by John Gonzales, postmarked Vernon, Texas. The main reason for the trial court's failure to admit such letter seemed to be that it was not shown to have been in the handwriting of the deceased person. There seems to have been some difference as to what took place at the trial this letter was attempted to be introduced in evidence, and the trial court, refusing to approve appellant's proffered bill, prepared one of his own, which was not acceptable to appellant's attorney, who then filed a blanket approval of his refused bill, signed by three bystanders, who merely made affidavit relative to the correctness of the refused bill. The State then countered with an affidavit of three bystanders affirming the correctness of the trial court's bill. These two affidavits doubtless *Page 455 counteracted the effect of either, but be that as it may, we think that under the facts herein shown appellant was in possession of the knowledge that the deceased was sexually intimate with his wife before the writing of this letter, and seemed to care little about it, and on account of the failure to show whose handwriting such letter was in, we do not think same was admissible. It is also shown that appellant claimed to have struck the deceased in self-defense, and seemed to care but little, if anything, about the unfaithfulness of his wife, about whose transgressions he was already familiar. The letter could have given him no more information than he was already possessed of.
We think the opinion on State's motion for rehearing herein correctly decided this case, and the motion is overruled.