I concur in the criticisms made by the Presiding Judge in the opinion touching the paragraph of the charge mentioned. Appellant having acquainted a third party with the contents of a letter to his wife, which is referred to in bill of exceptions No. 1, by procuring another to write the letter, I think its contents should not be rejected on the ground of privileged communication. I believe, however, *Page 625 there was a failure to establish a sufficient predicate to justify the introduction of secondary evidence of the contents of the letter.
With reference to the expression, "Oh, daddy, why did you do it?" referred to in bill of exceptions No. 5, I think that, if used by Mrs. Bibb, it was res gestae, and, whether it was used by her or not, was a question for the jury, and its introduction would not require a reversal.
The alleged statement by Mrs. Bibb, testified to by Mrs. Gaskins, I think was res gestae and admissible as coming within the rule relating thereto. Being res gestae and testified to by another than appellant's wife, it does not come within the inhibition of the statute which prohibits the wife from giving testimony against the husband. It is not her testimony that is used, but her verbal act so connected with the transaction as to become a part of it, and provable by competent witnesses like any other part of the transaction. See Robbins v. State,73 Tex. Crim. 367; Cook v. State, 20 Texas Crim. App., 511; Wharton, Crim. Ev., secs. 252-253.
So far as developed in the bill of exceptions complaining of the testimony of the witness Hull, descriptive of the blood and other conditions manifesting themselves upon the scene of the homicide on the morning thereafter, their relevancy is not disclosed. As the record is presented I would not feel disposed to concur in a reversal because of the facts shown by this bill alone, but unless on another trial the matter becomes relevant to some issue it should not be introduced.
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