Willson, Judge.
I. Over objections of defendant the prosecution was permitted to prove by several witnesses facts which showed that deceased was not virtuous; that she was unfaithful to the defendant, her husband; the evident purpose of introducing such evidence being to show that defendant had a motive to commit the murder. Defendant’s counsel presented the following objections to this evidence: “1. That it was inadmissible in any view of the case, being matter foreign to the issues before the jury, and could not throw light, directly or indirectly, on the guilt or the innocence of the defendant. 2. That said testimony was wholly inadmissible in any event, unless knowledge of the irregularities and infidelity of the wife was brought home to defendant. 3. That the matter sought to be drawn out was foreign matter, and in its nature calculated to prejudice, if not positively injurious to, the rights of defendant. 4. That the said matter injected new issues into the case, in addition to the one of the guilt or the innocence of the defendant, and was calculated to draw the minds of the jury off from the issues in the case. 5. That no predicate had been laid for the admission of said testimony, by showing that the acts of the wife, or any of her acts of irregularity or infidelity, had been communicated directly or indirectly, circumstantially or otherwise, to defendant. 6. That the testimony on this line, if admitted, would ■drag into the case foreign matter of a scandalous and sensational character, that would confuse the jury, draw their minds from the true issues in the case, and seriously prejudice defendant in his legal rights, and prevent him from having a [172]*172fair and impartial trial, on evidence pertinent to the charge brought against him.”
When these objections were made, the court stated that the evidence was inadmissible, unless the State should be able to prove satisfactorily that defendant was advised of the infidelity of his wife. Thereupon counsel for the State assured the court that they expected in the course of trial to produce evidence which would prove that defendant was informed of and did know of his wife’s infidelity at the time of her murder. Upon this assurance the objections to the evidence were overruled, and the evidence was admitted.
It can not be controverted that this evidence is of a material nature, when we consider that the evidence relied upon to estab-' lish guilt is wholly circumstantial. That defendant had a motive to commit the murder would be, in view of the other evidence, a strong circumstance againt him, and without proof of motive the other inculpatory circumstances would be very much weakened. For the single purpose of showing motive the-evidence objected to was admissible, if it was accompanied with proof satisfactorily showing that defendant at the time of the murder had knowledge of the improper conduct of his wife. It was not admissible for any other purpose, and not even for-this purpose unless a knowledge of the -facts by the defendant before the murder was shown to exist. Unless such knowledge-was shown, such evidence was wholly: foreign to the issue, was manifestly irrelevant, and should have been excluded. The learned trial judge entertained this view of it, and would not have admitted it except upon the assurance of counsel for the State that proof of defendant’s knowledge of the infidelity of his wife would be shown by testimony thereafter to be adduced during the progress of the trial.
In Marshall v. The State, 5 Texas Court of Appeals, 273, it is said that the relevancy of testimony need not be apparent at the time it is offered, it being the usual cofirse to receive at any proper and convenient stage of the trial in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be-laid out of the case. It is further remarked in that case as follows: “It must be apparent that such testimony having once gone to the jury, its impression would necessarily, to some extent, remain in their minds, though they were ordered to dis[173]*173card it; and in a case of circumstantial evidence it is next to impossible to say how far that impression exercised its influence in supplying any defect which might have arisen, or in solving any doubt in their minds on the general state of the evidence. A prosecuting officer in behalf of the State, in his zeal for a conviction, should never overlook the fact that the interests of society and the vindication of the law require at his hands as much the protection of the innocent as the conviction of the guilty. Evidence of this character in cases involving life should never be proposed by him unless he is morally certain that he can make good his promise of connecting the defendant with the matter ; there should be no room for doubt where, as in this case, he could have ascertained in advance the existence or nonexistence of the defendant’s connection with the proposed evidence.” In the Marshall case the trial judge instructed the jury to disregard the illegal evidence when he became satisfied that the prosecution had failed to connect the defendant with. it. In the case before us no such instruction was given the jury.
Did counsel for the State in this case fulfill his promise to the court by adducing evidence which proved that defendant, at the time of the murder of his wife, had knowledge that she had been unfaithful to him? If such proof was made, then the testimony objected to was relevant and admissible, but if such proof was not made it was clearly inadmissible and prejudicial to the defendant, and constitutes error, for which the conviction must be set aside. We must presume that the learned and just judge who tried this cause was satisfied from the evidence that the defendant at the time of the murder knew, or believed, that his wife had been unfaithful to him, otherwise the jury would have been instructed to wholly disregard and lay out of the case all the testimony relating to the wife’s improper conduct. Knowing, as we well do, the impartiality and profound ability of that eminent judge, we hesitate to disagree with him in his view of the evidence upon this point. But, after a very thorough and careful examination, and consideration of the statement of facts before us, we are forced to the conclusion that the State failed to prove satisfactorily, either directly or circumstantially, that the defendant either knew, or believed, at the time of the murder, that his wife was untrue to him. Some circumstances were proved which tend to show such knowledge or belief on his part, but these circumstances are, to our minds, re» mote and far from satisfactory.
[174]*174The proof of this knowledge or belief, in order to have rendered the evidence objected to pertinent and admissible, should have been as certain, satisfactory and conclusive as the proof of other facts necessary to be proved by the State. Upon the existence of this fact of knowledge or belief depended all the proof of motive, and the existence or non-existence of motive was a most important inquiry in the case. It was the province of the trial, judge to determine the sufficiency of the proof as to defendant’s, knowledge or belief of his wife’s infidelity, and from the facts before us, we think he should have adjudged proof of such knowledge or belief insufficient, and should have instructed the jury to wholly disregard the testimony relative to the improper conduct of the deceased.
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Willson, Judge.
I. Over objections of defendant the prosecution was permitted to prove by several witnesses facts which showed that deceased was not virtuous; that she was unfaithful to the defendant, her husband; the evident purpose of introducing such evidence being to show that defendant had a motive to commit the murder. Defendant’s counsel presented the following objections to this evidence: “1. That it was inadmissible in any view of the case, being matter foreign to the issues before the jury, and could not throw light, directly or indirectly, on the guilt or the innocence of the defendant. 2. That said testimony was wholly inadmissible in any event, unless knowledge of the irregularities and infidelity of the wife was brought home to defendant. 3. That the matter sought to be drawn out was foreign matter, and in its nature calculated to prejudice, if not positively injurious to, the rights of defendant. 4. That the said matter injected new issues into the case, in addition to the one of the guilt or the innocence of the defendant, and was calculated to draw the minds of the jury off from the issues in the case. 5. That no predicate had been laid for the admission of said testimony, by showing that the acts of the wife, or any of her acts of irregularity or infidelity, had been communicated directly or indirectly, circumstantially or otherwise, to defendant. 6. That the testimony on this line, if admitted, would ■drag into the case foreign matter of a scandalous and sensational character, that would confuse the jury, draw their minds from the true issues in the case, and seriously prejudice defendant in his legal rights, and prevent him from having a [172]*172fair and impartial trial, on evidence pertinent to the charge brought against him.”
When these objections were made, the court stated that the evidence was inadmissible, unless the State should be able to prove satisfactorily that defendant was advised of the infidelity of his wife. Thereupon counsel for the State assured the court that they expected in the course of trial to produce evidence which would prove that defendant was informed of and did know of his wife’s infidelity at the time of her murder. Upon this assurance the objections to the evidence were overruled, and the evidence was admitted.
It can not be controverted that this evidence is of a material nature, when we consider that the evidence relied upon to estab-' lish guilt is wholly circumstantial. That defendant had a motive to commit the murder would be, in view of the other evidence, a strong circumstance againt him, and without proof of motive the other inculpatory circumstances would be very much weakened. For the single purpose of showing motive the-evidence objected to was admissible, if it was accompanied with proof satisfactorily showing that defendant at the time of the murder had knowledge of the improper conduct of his wife. It was not admissible for any other purpose, and not even for-this purpose unless a knowledge of the -facts by the defendant before the murder was shown to exist. Unless such knowledge-was shown, such evidence was wholly: foreign to the issue, was manifestly irrelevant, and should have been excluded. The learned trial judge entertained this view of it, and would not have admitted it except upon the assurance of counsel for the State that proof of defendant’s knowledge of the infidelity of his wife would be shown by testimony thereafter to be adduced during the progress of the trial.
In Marshall v. The State, 5 Texas Court of Appeals, 273, it is said that the relevancy of testimony need not be apparent at the time it is offered, it being the usual cofirse to receive at any proper and convenient stage of the trial in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be-laid out of the case. It is further remarked in that case as follows: “It must be apparent that such testimony having once gone to the jury, its impression would necessarily, to some extent, remain in their minds, though they were ordered to dis[173]*173card it; and in a case of circumstantial evidence it is next to impossible to say how far that impression exercised its influence in supplying any defect which might have arisen, or in solving any doubt in their minds on the general state of the evidence. A prosecuting officer in behalf of the State, in his zeal for a conviction, should never overlook the fact that the interests of society and the vindication of the law require at his hands as much the protection of the innocent as the conviction of the guilty. Evidence of this character in cases involving life should never be proposed by him unless he is morally certain that he can make good his promise of connecting the defendant with the matter ; there should be no room for doubt where, as in this case, he could have ascertained in advance the existence or nonexistence of the defendant’s connection with the proposed evidence.” In the Marshall case the trial judge instructed the jury to disregard the illegal evidence when he became satisfied that the prosecution had failed to connect the defendant with. it. In the case before us no such instruction was given the jury.
Did counsel for the State in this case fulfill his promise to the court by adducing evidence which proved that defendant, at the time of the murder of his wife, had knowledge that she had been unfaithful to him? If such proof was made, then the testimony objected to was relevant and admissible, but if such proof was not made it was clearly inadmissible and prejudicial to the defendant, and constitutes error, for which the conviction must be set aside. We must presume that the learned and just judge who tried this cause was satisfied from the evidence that the defendant at the time of the murder knew, or believed, that his wife had been unfaithful to him, otherwise the jury would have been instructed to wholly disregard and lay out of the case all the testimony relating to the wife’s improper conduct. Knowing, as we well do, the impartiality and profound ability of that eminent judge, we hesitate to disagree with him in his view of the evidence upon this point. But, after a very thorough and careful examination, and consideration of the statement of facts before us, we are forced to the conclusion that the State failed to prove satisfactorily, either directly or circumstantially, that the defendant either knew, or believed, at the time of the murder, that his wife was untrue to him. Some circumstances were proved which tend to show such knowledge or belief on his part, but these circumstances are, to our minds, re» mote and far from satisfactory.
[174]*174The proof of this knowledge or belief, in order to have rendered the evidence objected to pertinent and admissible, should have been as certain, satisfactory and conclusive as the proof of other facts necessary to be proved by the State. Upon the existence of this fact of knowledge or belief depended all the proof of motive, and the existence or non-existence of motive was a most important inquiry in the case. It was the province of the trial, judge to determine the sufficiency of the proof as to defendant’s, knowledge or belief of his wife’s infidelity, and from the facts before us, we think he should have adjudged proof of such knowledge or belief insufficient, and should have instructed the jury to wholly disregard the testimony relative to the improper conduct of the deceased. At least, considering the very meagre and unsatisfactory evidence tending to show such knowledge or belief, the jury should have been instructed that, unless they were satisfied from the evidence that defendant did know or believe, at the time of the murder, that his wife was unfaithful to him, they should wholly disregard all the evidence in relation to the improper conduct and infidelity of deceased.
II. We must also hold that the testimony of the witnesses,. Highsmith and McOutcheon, as to threats made by the defendant, was inadmissible. These threats were conditional. They were that if he knew his wife was. not virtuous, he would kill her and himself too. They were of but little significance when viewed in the light of the circumstances under which they were-made, and were not pertinent evidence to prove motive, unless accompanied by proof that defendant knew that his wife was not virtuous. They were inadmissible for the same reason that the evidence relating to the wife’s conduct has been held to be inadmissible, and should have been excluded from the consideration of the jury.
III. We cannot say that it was error to refuse to compel the prosecution to introduce James Phillips as a witness in the case’ We think this was a matter within the sound discretion of the court, and not subject to revision by this court except in a clear case of the abuse of such discretion to the injury of the defendant. There may be cases in which it would be not only proper, but essential to the ends of justice, to compel the prosecution to-produce witnesses who are shown, by other evidence in the case, to be material. Such a case, in the opinion of the writer, was. that of Hunnicutt v. The State, 20 Texas Court of Appeals, 636, in which Presiding Judge White discusses this question, and [175]*175expresses his individual views, in which views the writer concurs. In the case before us, it is not made to appear that James Phillips was a material witness; that he knew any facts which, would throw light upon the murder. He was not present at the time and place of the murder, and, so far as shown by the other evidence in the case, knew no fact material to the inquiry. It does not even appear likely that James Phillips had a knowledge of any material fact that was not proved by other ^wit^ nesses.
Opinion delivered November 10, 1886.
IV. With regard to the sufficiency of the evidence to support-the conviction, we shall refrain from discussion, in.view of the fact that another trial of the case will be had, and on such other trial the evidence may differ materially from that now before us.
Because of the errors committed in the admission of illegal testimony, the judgment is reversed and the cause remanded.
Reversed and remanded..