Stephens v. State , 128 Tex. Crim. 311 ( 1935 )

State's counsel contends that there was error committed in reversing the case. He bases his assertion upon the fact, expressed by him, that the testimony describing the letter bearing date January 9, 1934, as set out in the original opinion, was properly received as corroboration of the prosecutrix; that such corroboration was rendered admissible by the admission of the prosecutrix in her testimony that she had previously implicated another person besides appellant. Counsel for the State refers to the annotations in Branch's Ann. Tex. P.C., sec. 91. Our examination of the precedents mentioned fails to convince us of the soundness of the State's contention. An examination of other decisions of this court seems to fortify the position of the appellant in the present appeal. Notable examples are Purvis v. State, 104 Tex.Crim. Rep.; Terrell v. State,88 Tex. Crim. 599. In the syllabus of the latter case it is said: "Letters written by the person injured or by a third person, addressed to the accused and received by him, but never answered or acted on by him, are not admissible against him unless they are a part of the res gestae."

Testimony similar to that for which the State contends in the present instance was likewise rejected in the opinion of Judge Hawkins in the Purvis case, supra.

Upon the record and our understanding of the controlling precedents, the State's motion for rehearing is overruled.

Overruled.