Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, for killing Miss Mollie White; hence this appeal is prosecuted. This was a most atrocious and revolting murder. The testimony against the appellant was circumstantial. Some facts tended *Page 299 strongly to incriminate him, and other facts tended strongly to exculpate him. It was very necessary and of the highest importance that the trial should be a fair, impartial legal trial, because, if the jury should take an unfavorable view of the evidence for the appellant, this court could not have reversed the judgment because of the insufficiency of the evidence. But, as above stated, strong circumstances and proof tending to show an alibi were introduced in behalf of the appellant. Upon the trial, nothing that was calculated to unjustly prejudice appellant before the jury should have been permitted. Over the objections of the appellant, the State was permitted to introduce in evidence a certain note or letter, as follows: "Well, Bob Crow, I have f__k your girl; I set in for that. I have f__k Mollie White, and you can't goe with her anymore. I can tell White's folks enything, an tha believe me. Mollie leave the window open." This letter contained no signature. Counsel for appellant objected to the introduction of this letter, "because no sufficient predicate for its introduction had been laid, and because it was of a character calculated to highly prejudice the jury against the defendant, and because it was not shown that defendant had any connection whatever with said note and the writing thereof, and that the same was found more than one year before the alleged murder." As a predicate for the introduction of this note or letter in evidence against the appellant, the State introduced J.B. McLane (president of the First National Bank of Cameron), who had been in the banking business for something over three years. McLane states that he did not claim to be an expert, but that he could distinguish handwriting of different persons by comparison. The State had in evidence a specimen of the handwriting of the appellant, and, when witness made the comparison between the latter and the note referred to above, he said: "There is a similarity in the formation of some of the letters. Perhaps the two instruments were written in a different position. There is more similarity in the small letters than in the large. I cannot give an opinion as to whether the same party wrote both instruments. I can only go so far as to say that there is quite a similarity in the formation of some of the letters in some of the words. If the papers were just casually handed me, and I looked at them, not as an expert, I would not say that the same person wrote them. As an expert, I cannot give an opinion as to whether they were written by the same person, and can only say that there is considerable similarity in some of the letters in some of the words." We are of the opinion that this was not sufficient testimony upon which to admit the letter or note. The damaging effect upon the rights of the accused in this case from the introduction of this note is very certain and unquestionable. The proof that he wrote it should have been reasonably certain. Such proof was not made in this case. Concede everything stated by McLane to be true, still this would not warrant the admission of the note in evidence. He simply says that there was a similarity in some of the small letters in the note to those in the handwriting conceded to be the genuine handwriting of the defendant, but he *Page 300 does not state that it was his opinion that Crow wrote that note. We are of opinion that the court erred in admitting this note in evidence and, under the peculiar circumstances of this case, we think it reversible error. As above stated, this conviction depended alone upon circumstantial evidence, two theories being strongly presented by the evidence — the theory of the State, tending to show appellant guilty; and the theory of the defendant tending to show his innocence. It was the duty of the court to charge the law clearly and fully applicable to such a case, to-wit: a case of circumstantial evidence. Was this done in this case? We are of opinion that it was. Appellant, at the proper time, interposed objections to the charge of the court, "because it does not instruct the jury that the facts and circumstances must be inconsistent and incompatible with the defendant's innocence." The jury were instructed in the charge that "in order to warrant a conviction upon such evidence, to-wit: circumstantial evidence, each fact necessary to establish the guilt of the accused must be proved by competent evidence beyond a reasonable doubt; and the facts and circumstances proved must be consistent with each other, and with the guilt of the accused, and, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the defendant, and no other person, committed the offense charged; and, unless the evidence does so, you will acquit the defendant." We have never held that such a charge as this was defective. By instructing the jury that "the defendant, and no other person, committed the offense charged," this was equivalent to an instruction that the facts and circumstances must be inconsistent and incompatible with the defendant's innocence. Neither in the Jones case, 34 Tex. Crim. 490, nor in Smith's case, 35 Tex.Crim. Rep., was the jury instructed, in substance, that the facts and circumstances must produce, in effect, a reasonable and moral certainty that the defendant, and no other person, committed the offense. We are not treating a case in which two parties are on trial charged with the same offense. Such a charge as given above might not be applicable to every case, because the defendant may not have actually killed the deceased, but may have been acting as an accomplice for some other person who did the killing. (This by the way to prevent misconstruction.) We are not to be understood as holding that the charge in this case would be correct in all cases. If there was an issue as to whether the deceased was killed by any person, or suicided, and the issue, assuming that a murder had been committed, as to whether the accused was the guilty person, then it would be necessary for the court to instruct the jury that the facts and circumstances relied upon for conviction must be proved by competent evidence, beyond a reasonable doubt, and the facts and circumstances thus proved must be consistent with each other, and with the guilt of the accused, and, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that *Page 301 the defendant, and no other person, committed the offense charged, and that they must exclude every reasonable hypothesis save the guilt of the accused. There was no question in this case in regard to the fact that the murder was committed by somebody. Suicide is not at all suggested by any of the testimony in the case. Because of the admission in evidence of the note or letter above indicated, the judgment is reversed, and the cause remanded.
Reversed and Remanded.
HENDERSON, Judge, does not sit in this case.