Mayfield v. State

ON MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

The state has filed a lengthy and forceful motion for rehearing in which many pages are devoted to our observations regarding the action of the trial court in not postponing or continuing the case after the death of appellant’s father. The reversal was not predicated upon that incident. The early approach of the end of our present term precludes further consideration of that point, and it could not arise upon another trial.

The reversal was based upon what we thought was a serious error in admitting in evidence a letter, or copy thereof, written to appellant by one, Peggye Barrack, and the cross-examination of appellant over objection relative to certain statements in the letter, and the argument of one of the assistant district attorneys referring to some language found in the letter.

A further examination of the record leads us to believe that the insistence of state’s counsel that the letter was admissible and that the action of the court in finally withdrawing it from the jury was an error against the state arises from a misconception of the state’s part that the letter from Mrs. Barrack was in direct reply to one written her by appellant. If this were true, there would be authority sustaining the state’s contention. However, we find that the letter written by Mrs. Barrack is dated January 6, 1946, and the one from appellant to her is dated January 4, 1947. The 1946 letter could not possibly be in reply to the one written a year later. This confirms us in our original view that the letter ought not to have been admitted in the first instance, and that the subsequent withdrawal of it did not cure the error in its admission, especially so when considered in the light of the complained of argument which used some of the exact harmful language found in the letter.

Believing the case was properly disposed of originally, the state’s motion for rehearing is overruled.