
    WILBURN v. STATE.
    (No. 8774.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.)
    1. Homicide <&wkey;!8l — Exclusion of evidence to prove improper relation between deceased and defendant’s wife held error:
    Where defendant, to reduce killing to manslaughter, testified as to finding a letter addressed to deceased which he claimed was in his wife’s handwriting, and which contained statements warranting conclusion that deceased and defendant’s wife had been guilty of adultery, evidence that deceased was often seen visiting defendant’s wife during defendant’s absence held admissible as tending to corroborate defendant’s statement that letter was written by his wife.
    2. Criminal law &wkey;>338(l) — Evidence tending to show probable truth of defense admissible.
    Where defendant relies on character of defense that is not definitely and clearly established by the evidence, any fact or circumstance which renders defense probably true is admissible.
    @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Willie Wilburn was convicted of murder, and he appeals.
    Reversed and remanded.
    Price & Miller and Joe W. Taylor, all of Waco, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J-

Appellant was convicted in' the district court of McLennan county for the offense of murder, and his punishment assessed at confinement in the penitentiary for a term of 15 years.

The state’s testimony shows that the killing occurred .at Moody, Tex., and the testimony from the standpoint of the state shows that appellant went to the home of Willie Smith, called the deceased from the gallery, walked up the street some little distance .to near the home of the defendant, and shot the deceased. Some of the witnesses testify that they saw nothing out of the ordinary about the looks or demeanor of either the appellant or the deceased when they left the home of Willie Smith. The state’s testimony, taken alone, is entirely sufficient to justify a verdict for murder.

The defendant testified in his own behalf that on Sunday, the day of the killing, he went to the post office to get his mail; that the deceased’s box was No. 272, and his box was No. 265; that as he was getting his mail he saw a letter, from his wife in the ’box of deceased; (that he knew her handwriting, and asked the postmaster for it and got it. He testified that he was familiar with his wife’s handwriting, and identified the letter as having been written in her handwriting.

The envelope was postmarked “Lampasas, Texas, Sep. 15, 1923. From Moselle Bailey, Lampasas, Texas.” Address: “Mir. McCoy Pish, Moody, Texas.” The letter contained many affectionate and lascivious statements, and if written by appellant’s wife was entirely sufficient to justify appellant in concluding that deceased and appellant’s wife had been ,guilty of adultery. Said letter was signed “Little Devil.” ••

Appellant also testified that when he showed this letter to the deceased, immediately before he killed him, the deceased said; “It is funny to me; every time niggers whose whores have trouble, they lay it on me.”

It will be observed from the above statement tha,t appellant’s testimony showed that he relied solely on his knowledge of his wife’s handwriting to enable him to conclude that she wrote the letter;' and it will also be observed that the language used by the deceased when shown the letter might easily be construed as a denial of the truth of the contents of the letter.

By bill of exceptions No. 11, appellant complains of the action of the trial cipurt in refusing to permit him to prove by the witness J. A. Land that he knew the defendant and the deceased, McCoy Pish, and that his (Land’s) place of business was across the street from the residence of the defendant, and that often when the defendant was absent he saw the deceased enter the home of the defendant while defendant’s wife was present, and on several occasions he saw the defendant leave his home and immediately thereafter the deceased would enter said home and visit defendant’s wife and would leave before the defendant would return. There were no other persons living in said house, which was a residence, except Wilburn, the defendant?, and his wife, and' neither Wilburn nor his wife were related to McCoy Pish. The bill shows that this evidence was offered for the purpose of proving that an improper relation existed between the deceased and the defendant’s wife, that they were committing adultery, and that the defendant .was justified in his belief that this relationship existed, and that he did not kill or act on an unfounded suspicion. This evidence was admissible.

In order to reduce the killing to manslaughter, appellant offered in evidence an envelope postmarked Lampasas, Texas, with the inscription “Prom Moselle Bailey, Lampasas, Texas.” This letter was signed “Little Devil” and addressed to deceased. Appellant testified that it was written in the handwriting of his wife. If written by appellant’s , wife, this letter revealed that a state of illicit relations existed between her 'and deceased. “, Appellant' showed this 'letter to deceased before he killed him, as above stated, and deceased used language which the jury may have properly construed as being a denial of such illicit relations. Under these conditions, if appellant 'believed the letter to be in his wife’s handwriting, the letter stood on exactly the same basis as would an oral statement of such illicit relations made by his wife to him; yet, under the testimony, the jury may have concluded, because no other testimony was offered as to either the handwriting or the illicit relations between appellant’s wife and deceased, and because no other person than the appellant testified to either of these matters, that said wife did not write the letter and that appellant did not believe she wrote it The excluded testimony would have cogently and pertinently tended to corroborate the appellant’s statement that the letter was written by his wife, and might have assisted the jury in concluding that the deceased was intimate ’with her. In a criminal case, where appellant relies upon any character of defense that is not definitely and clearly established by the evidence, then any fact or circumstance which renders probably true the appellant’s defense is admissible in evidence. McAnear v. State, 43 Tex. Cr. R. 522, 67 S. W. 117; Hill v. State, 52 Tex. Cr. R. 241, 106 S. W. 145; Fossett v. State, 41 Tex. Cr. R. 405, 55 S. W. 497; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807. 41 S. W. 638, 70 Am. St. Rep. 719; Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 548; Walker v. State, 70 Tex. Cr. R. 84, 156 S. W. 206.

Because of the error of the court in excluding the testimony above detailed, we conclude that the judgment of the trial court should be reversed, and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  