MORROW, Presiding Judge.
Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for twelve years.
It is claimed by the state, and affirmed by W. R. Muse, that an assault to murder upon the said Muse was made upon the 29th day of September, 1930, in the city of Marshall, Texas. The testimony of Muse and others is sufficient to support the finding of the jury that the assault was made by the appellant with the intent to kill Muse. By a number of witnesses, including Tex Rhodes, the appellant set up the defense of alibi, claiming that at the time of the injury the appellant was not at Marshall, Texas, but was at McLean, in Gray County, which is many miles from Marshall.
Tex Rhodes was twice called by the state. When first called for the state, he testified that his name was Sidney W. Rhodes; that he had had no correspondence with the appellant, Bill Rose, after the latter left McLean, Texas. On the 15th of November, 1931, Rhodes’ postoffice address was Box 396, McLean, Texas. From the testimony of Rhodes we quote: “I can’t swear that this letter you show me was written by Bill Rose and that is his signature. * * * I don’t remember if I ever received a letter from him. Bill’s name is signed to the letter that you show me.”. On cross-examination the witness testified: “I can’t say that is Bill’s handwriting on that envelope. I can’t identify it as Bill Rose’s handwriting. * * * I cannot tell that is Bill’s handwriting (letter G-2) from the way the word ‘Bill’ is written. I do not know whether Bill Rose wrote this letter.” On re-direct examination Rhodes testified: “I believe that Bill Rose lived at 210 Lake Street, Marshall, or 207. * * * I had not written Bill Rose a letter prior to the receipt of this letter. I don’t remember if Bill wrote me a letter after he left McLean.”
In answer to a question as to whether, on cross-examination, Rhodes identified the signature as being that of Bill Rose, he [379]*379said: “I identified his name.” The witness, in effect, declared that he had no recollection of having written appellant a letter or having received one from him. The effect of Rhodes’ testimony was that he could not identify the letter as having come from the appellant or was in the handwriting of the appellant.
On his second recall, the attorney for the state asked Rhodes questions which he answered thus: “Yes, sir, before the jury retired you asked me about whether I received that letter at any time last year (G-2). I read that letter that you showed me. Yes, I got that letter. I was at McLean, Texas, when I got that letter.”
The receipt of this testimony was opposed upon the ground that the letter was not identified as coming from the appellant, Rose. However, the letter was received in evidence over the objection of the appellant, its purport being to outline certain suggested testimony that the witness Rhodes should give tending to support the theory that the appellant, at the time the offense is charged to have been committed, was at McLean, Texas, and not at Marshall, Texas. The envelope was addressed to S. W. Rhodes, Box 396, McLean, Texas, and on the back of it, there appeared the following: “From 207 Lake St., Marshall, Texas.” The letter purported to bear date the 14th day of November, 1931.
The witness John Pool testified that he was a deputy sheriff of Rusk County and had charge of the jail at Henderson, Texas; that on the 5th of March, 1931, appellant was in jail and in custody of the witness, and on said date Rose gave Pool a letter marked for identification “G-l,” which letter Pool delivered to the district attorney. On cross-examination Pool said: “I don’t know that I saw Bill Rose write that letter. He gave it to me to put in the United States Post Office. * * * I diverted it from the United States Post Office and gave it to the District Attorney. It was not sealed, and I censor all the mail from the jail. * * * Bill Rose was under indictment in Rusk County. * * * I don’t know that I would know Bill Rose’s handwriting if I would see it. I know that Bill Rose wrote that letter and gave it to me to mail. I didn’t see him write it. I didn’t have to have permission from Bill Rose to read his mail. It is our custom to go through all mail going out not sealed. * * * That letter is addressed to Mr. Robert Rose at Navasota, Texas, General Delivery, after five days return to W. R. Rose, County Jail, Henderson, Texas.” The letter in question was written at Henderson, Texas, March 5, 1932, and addressed to Mr. Robert Rose and Family.
[380]*380The state introduced the witness Gordon M. Boone, assistant cashier of the First National Bank, who stated that he had had experience as a banker and had handled a great many checks; that on an average he handled from one to two hundred checks a day.' The witness testified: “In my position I have occasion to compare signatures and handwriting of various customers. I have to do that frequently. You have handed me two letters and have asked me if the signature (letters ‘G-l’ and ‘G-2’) and letters are written by the same man, and it is my opinion that they are written by the same person.” On cross-examination Boone testified: “I don’t know who wrote those letters; I merely compared the handwriting of the two letters and I think it is very similar. * * * In my opinion those two letters were written by the same man.”
In support of the conclusion of the learned trial judge that the testimony was admissible in evidence against the appelllant, he refers, in qualifying the bill of exception, to the following cases: Jones v. State, 165 S. W., 144; Ferguson v. State, 136 S. W., 465; Hunt v. State, 26 S. W., 206; Williams v. State, 11 S. W., 482; McKee v. State, 42 S. W. (2d) 77.
The opinion is entertained that neither of the letters marked “G-l” and “G-2” was admissible in evidence against the appellant.
In the Kennison case, 260 S. W., 174, the offense was forgery. While the accused was in custody, the district attorney caused him to write the words “February,” “Texarkana,” “J. E. Richardson,” and also his own name on a paper. These writings were used against the appellant in making comparison with the alleged forged document. Holding that the procedure was reversible error, the court reaffirmed a previous announcement as follows: “The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the state as a criminative fact against him.” (Branch’s Ann. Tex. P. C., p. 32, sec. 59.)
Supplementing the authorities cited by Mr. Branch under the proposition mentioned, this court, in the Kennison case, made reference to many others to the same effect. Commenting upon the precedents to which we have been referred in the present case, this court, speaking through Judge Hawkins, made the following remarks in the Kennison case: “The learned trial judge, with his usual care and caution, justifies his recep[381]*381tion of the evidence complained of by the opinions of this court in Ferguson v. State, 61 Texas Crim. Rep., 152, 136 S. W., 465, and Hunt v. State, 33 Texas Crim. Rep., 252, 26 S. W., 206. The Hunt case, although it does not refer to it, evidently followed Williams v. State, 27 Texas App., 466, 11 S. W., 481; hence we review the three cases mentioned. Williams was charged with theft of horses.
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MORROW, Presiding Judge.
Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for twelve years.
It is claimed by the state, and affirmed by W. R. Muse, that an assault to murder upon the said Muse was made upon the 29th day of September, 1930, in the city of Marshall, Texas. The testimony of Muse and others is sufficient to support the finding of the jury that the assault was made by the appellant with the intent to kill Muse. By a number of witnesses, including Tex Rhodes, the appellant set up the defense of alibi, claiming that at the time of the injury the appellant was not at Marshall, Texas, but was at McLean, in Gray County, which is many miles from Marshall.
Tex Rhodes was twice called by the state. When first called for the state, he testified that his name was Sidney W. Rhodes; that he had had no correspondence with the appellant, Bill Rose, after the latter left McLean, Texas. On the 15th of November, 1931, Rhodes’ postoffice address was Box 396, McLean, Texas. From the testimony of Rhodes we quote: “I can’t swear that this letter you show me was written by Bill Rose and that is his signature. * * * I don’t remember if I ever received a letter from him. Bill’s name is signed to the letter that you show me.”. On cross-examination the witness testified: “I can’t say that is Bill’s handwriting on that envelope. I can’t identify it as Bill Rose’s handwriting. * * * I cannot tell that is Bill’s handwriting (letter G-2) from the way the word ‘Bill’ is written. I do not know whether Bill Rose wrote this letter.” On re-direct examination Rhodes testified: “I believe that Bill Rose lived at 210 Lake Street, Marshall, or 207. * * * I had not written Bill Rose a letter prior to the receipt of this letter. I don’t remember if Bill wrote me a letter after he left McLean.”
In answer to a question as to whether, on cross-examination, Rhodes identified the signature as being that of Bill Rose, he [379]*379said: “I identified his name.” The witness, in effect, declared that he had no recollection of having written appellant a letter or having received one from him. The effect of Rhodes’ testimony was that he could not identify the letter as having come from the appellant or was in the handwriting of the appellant.
On his second recall, the attorney for the state asked Rhodes questions which he answered thus: “Yes, sir, before the jury retired you asked me about whether I received that letter at any time last year (G-2). I read that letter that you showed me. Yes, I got that letter. I was at McLean, Texas, when I got that letter.”
The receipt of this testimony was opposed upon the ground that the letter was not identified as coming from the appellant, Rose. However, the letter was received in evidence over the objection of the appellant, its purport being to outline certain suggested testimony that the witness Rhodes should give tending to support the theory that the appellant, at the time the offense is charged to have been committed, was at McLean, Texas, and not at Marshall, Texas. The envelope was addressed to S. W. Rhodes, Box 396, McLean, Texas, and on the back of it, there appeared the following: “From 207 Lake St., Marshall, Texas.” The letter purported to bear date the 14th day of November, 1931.
The witness John Pool testified that he was a deputy sheriff of Rusk County and had charge of the jail at Henderson, Texas; that on the 5th of March, 1931, appellant was in jail and in custody of the witness, and on said date Rose gave Pool a letter marked for identification “G-l,” which letter Pool delivered to the district attorney. On cross-examination Pool said: “I don’t know that I saw Bill Rose write that letter. He gave it to me to put in the United States Post Office. * * * I diverted it from the United States Post Office and gave it to the District Attorney. It was not sealed, and I censor all the mail from the jail. * * * Bill Rose was under indictment in Rusk County. * * * I don’t know that I would know Bill Rose’s handwriting if I would see it. I know that Bill Rose wrote that letter and gave it to me to mail. I didn’t see him write it. I didn’t have to have permission from Bill Rose to read his mail. It is our custom to go through all mail going out not sealed. * * * That letter is addressed to Mr. Robert Rose at Navasota, Texas, General Delivery, after five days return to W. R. Rose, County Jail, Henderson, Texas.” The letter in question was written at Henderson, Texas, March 5, 1932, and addressed to Mr. Robert Rose and Family.
[380]*380The state introduced the witness Gordon M. Boone, assistant cashier of the First National Bank, who stated that he had had experience as a banker and had handled a great many checks; that on an average he handled from one to two hundred checks a day.' The witness testified: “In my position I have occasion to compare signatures and handwriting of various customers. I have to do that frequently. You have handed me two letters and have asked me if the signature (letters ‘G-l’ and ‘G-2’) and letters are written by the same man, and it is my opinion that they are written by the same person.” On cross-examination Boone testified: “I don’t know who wrote those letters; I merely compared the handwriting of the two letters and I think it is very similar. * * * In my opinion those two letters were written by the same man.”
In support of the conclusion of the learned trial judge that the testimony was admissible in evidence against the appelllant, he refers, in qualifying the bill of exception, to the following cases: Jones v. State, 165 S. W., 144; Ferguson v. State, 136 S. W., 465; Hunt v. State, 26 S. W., 206; Williams v. State, 11 S. W., 482; McKee v. State, 42 S. W. (2d) 77.
The opinion is entertained that neither of the letters marked “G-l” and “G-2” was admissible in evidence against the appellant.
In the Kennison case, 260 S. W., 174, the offense was forgery. While the accused was in custody, the district attorney caused him to write the words “February,” “Texarkana,” “J. E. Richardson,” and also his own name on a paper. These writings were used against the appellant in making comparison with the alleged forged document. Holding that the procedure was reversible error, the court reaffirmed a previous announcement as follows: “The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the state as a criminative fact against him.” (Branch’s Ann. Tex. P. C., p. 32, sec. 59.)
Supplementing the authorities cited by Mr. Branch under the proposition mentioned, this court, in the Kennison case, made reference to many others to the same effect. Commenting upon the precedents to which we have been referred in the present case, this court, speaking through Judge Hawkins, made the following remarks in the Kennison case: “The learned trial judge, with his usual care and caution, justifies his recep[381]*381tion of the evidence complained of by the opinions of this court in Ferguson v. State, 61 Texas Crim. Rep., 152, 136 S. W., 465, and Hunt v. State, 33 Texas Crim. Rep., 252, 26 S. W., 206. The Hunt case, although it does not refer to it, evidently followed Williams v. State, 27 Texas App., 466, 11 S. W., 481; hence we review the three cases mentioned. Williams was charged with theft of horses. He defended on a bill of sale which the state claimed to be bogus and manufactured by accused for defensive purposes. He had signed applications for continuance and for attachments for witnesses. His signature to those instruments were admitted as standards of comparison to show that he also wrote the bill of sale. It was held (Judge Willson writing the opinion) that the introduction in evidence of the signatures did not violate the rule which excludes a confession made while the accused is in jail. Hunt was charged with the murder of his wife. Two letters were in possession of the state signed by Hunt; they were incriminative. Hunt also had made and signed an application for attachment for witnesses, and this signature was used as a standard of comparison with the signature to the letters to prove their execution by accused. Ferguson was charged with theft of horses, and produced a bill of sale accounting for his possession. He had signed an appearance bond, and this signature was used to show the similarity between it and the writing in the bill of sale, it being contended by the state (as it was in Williams’ case) that Ferguson had manufactured the bill of sale.”
The facts in the Ferguson case, supra, distinguish it from the present appeal by the fact that the standard of comparison permitted in the Ferguson case was to the effect that the appearance bond signed by the appellant to secure his release in the particular case on trial was an official document; and by reason of its official character and the necessity therefor to secure the release of the accused, it stood upon a different footing from a private letter or the mere "writing of words for the purpose of comparison. The Ferguson case is in line with Hunt’s case (33 Texas Crim. Rep., 252), where the document was a bill of sale executed by the accused and found in his possession. Note of the distinction was made by the court, speaking through Judge Hawkins, in the Kennison case, supra. The case of Jones v. State, 73 Texas Crim. Rep., 152, 165 S. W., 144, is also distinguished with the statement that the bills of exception in that case were imperfect. The ruling of the court, though properly presented by bills of exception, could not be [382]*382followed because of the conflict with the statutory provisions to which reference is made in the Kennison case, supra.
Adverting to that phase of the present case in which the deputy sheriff received a letter from the appellant for mailing, which letter was subsequently introduced in evidence for the purpose of comparison, in addition to the remarks in the Kennison case to which reference has been made, we refer to the cases of Phillips v. State, 6 Texas App., 364, and Hatch v. State, 6 Texas App., 384, in which it is made plain that under the law of this state, in order to establish handwriting by comparison, it is essential that there must be proof clearly showing that the document used for comparison was written by the accused on trial. In the present instance, it was not shown that the letter to which the deputy sheriff refers was. written by the appellant. The testimony of the expert introduced to prove the identity by comparison, founded as it is upon letters not shown to have been in the handwriting of the appellant, cannot be effective against the appellant. The latest expression on the subject embraced in this appeal will be found in the case of Blackshear v. State, 58 S. W. (2d) 105, which accords with the conclusion announced in the Kennison case, supra.
For the reasons stated, we are constrained to conclude that the proper disposition of the case demands that it be reversed and remanded. It is so ordered.
Reversed and remanded.