ON MOTION FOR REHEARING.
HAWKINS, Judge.In the motion for rehearing counsel *90for the State appears to be in accord with the announcement in the original opinion to the effect that, generally in the trial of an accomplice to an offense, the confession of the principal is not admissible where such principal is a competent witness against the accomplice and testifies, acknowledging his guilt. It is insisted, however, that the confession of Barrow, the principal, became admissible by virtue of the fact that appellant cross-examined him as to certain matters embraced in the confession, and further, laid a predicate for impeaching him.
Adverting to the cross-examination mentioned, it is observed that the only question propounded to Barrow concerning his confession related to an isolated statement embraced therein. In short, as shown on page 18 of the statement of facts, the question propounded elicited from him the following statement: “I remember in that voluntary statement making a statement about like this: ‘About three weeks after Pearlie Sherman and D. W. Browney were married I was over at Dezry Sherman’s house, and I sent his little girl over to Mr. Richard Sherman’s house and told her to tell Mrs. Richard Sherman to come over to Dezry’s house, that I wanted to talk to her. Mrs. Richard Sherman came over to Dezry’s house and she and I got in my car and came to Liberty and had dinner together at a restaurant.’ I made that statement.” Looking to the confession of Barrow, it appears that the statements therein showing his guilt and connecting appellant with the offense as an accomplice constitute a subject separate and distinct from that embraced in the above quotation. In his direct examination by counsel for the State, Barrow made exactly the same statement concerning Mrs. Richard Sherman as that elicited by appellant.
In Howard v. State, 92 Texas Crim. Rep., 221, 242 S. W., 739, which was conviction for murder, the State claimed that Ed Walker was the moving spirit in a conspiracy to kill the deceased. On cross-examination accused elicited from Tyler, a State’s witness, the following testimony: “Ed Walker had told me where this whisky was, and I went and found it and put it back. He told me about this at an automobile right by the hotel over there at Hasse. About the whisky-making is not all that Ed Walker told me about. I am not lying about anything I said. I am telling the truth.” On re-direct-examination, the State asked the witness to state all of the conversation that he had with Walker on the occasion inquired about by accused. Over objection, the witness told all of the purported conversation with Walker, in which was set forth the *91guilt of Howard and two others. After reviewing the authorities this court reached the conclusion that the reception of such testimony constituted reversible error. In the course of the opinion, Judge Lattimore, speaking for the court, said: “ * * * The witness on direct examination said that Walker had made a statement to him about Jack McCurdy being killed, and, on cross-examination, said witness had been asked if the conversation he had with Walker did not relate only to the whisky business, which question he answered in the negative. Did the defense by this question negatively answered, ‘put in evidence’ any part of said conversation relative to said killing? We are unable to perceive upon what sound theory this claim is based. The mere asking the question, if it was not true that the conversation had with Walker was only about the whisky business, would not seem to put in evidence any of said conversation which related to subjects other than such whisky business. * * * Article 811, supra (now Art. 728, C. C. P.,) plainly states that, when part of an act or declaration is introduced by one party, any other part or all thereof on the same subject may be introduced by the opposite party. The test is: Is that part offered by the opposite party on the same subject? If not, it is not admissible, even though it be in the same conversation. * * * Appellant, having elicited no part of the conversation on the subject of the killing, it was material error for the State to introduce same.”
In the recent case of Davis v. State, 111 Texas Crim. Rep. 476, 14 S. W. (2d) 842, which was a conviction for attempting to pass a forged instrument, it appears that Davis had made a written statement before the grand jury. Upon the trial counsel for the State had cross-examined Davis relative to certain declarations in the statement. Thereafter Davis sought to introduce in evidence the entire statement. In concluding that the court properly declined to permit its introduction, we said: “This is the only thing in the statement outside the admissions elicited on cross-examination that relates to the subject of Anderson’s signature to the bond. The remainder of the statement relates to securing the signature of other persons to the bond and is wholly foreign to the matter under investigation. The statement made by appellant before the grand jury, in so far as it related to Anderson’s signature, was available to the State as original evidence against appellant as well as to impeach his evidence given on the trial. After he admitted on cross-examination that his testimony before the grand jury was in direct contradiction to that given on the *92trial, there was no necessity for the State to put the grand jury statement in evidence, and it did not do so. Appellant contends that in reading from the grand jury statement in forming his questions the district attorney had in effect placed in evidence that portion of the statement which appellant admitted he had made, and therefore argues that such action gave appellant the right to introduce the ‘whole’ of the statement. It is shown by the court’s qualification that no restriction was placed upon counsel for appellant in interrogating him regarding the statement. If under the circumstances the right accrued to appellant to introduce any part of the statement, his contention, we think, is broader than the statute (art. 728, C. C. P.) which only authorized him to place in evidence the whole of the statement which bore upon the same subject.”
See, also, Earnest v. State, 202 S. W., 739, and Payne v. State, 85 Texas Crim. Rep., 288, 212 S. W., 161.
We next advert to the contention that the confession became admissible by virtue of the fact that a predicate had been laid for the impeachment of Barrow. Counsel for the State insists that we were in error in the original opinion in our statement to the effect that before making the confession Barrow had assurance from those in proper authority that the penalty assessed against him would be life imprisonment in the penitentiary, and, in effect, that the State would not ask that the death penalty be assessed against him. On page 32 of the statement of facts occurs the following in the testimony of Barrow: “I testified in the trial before this. I testified in the examining trial. There was not anything said about my testifying only that I would be sentenced to the penitentiary for life. That was all that was ever said to me; that if I testified against her I would be sentenced to the penitentiary for life. My lawyer told me that. He did not say that they would waive the death penalty. He just told me he had agreed with the State, and that if I testified in this case I would go to the penitentiary for life. I agreed to that.”
In the original opinion we construed the foregoing statement to relate to a promise made to Barrow before he made the confession in question. It might be that we placed the wrong construction thereon, and that the language used should have been interpreted to mean that the promise came after the confession was made, but prior to the time that Barrow testified upon the trial. If the construction contended for by counsel for the State be given said language, we take it that a decision of the point involved is not materially affected for the *93reason hereinafter stated. The State’s testimony showed that when Barrow was arrested he denied any connection with the killing of deceased, and told the officers he knew nothing about it: In the testimony of Barrow is found the following: “Mr. Anderson (deputy sheriff) brought me here. He told me that they had arrested Mrs. Browney (appellant) and told me she had told him the truth about it. That was when Mr. Anderson had me. He told me that Mrs. Browney was arrested and that she had told that I had done it. That is what Mr. Anderson told me. He told me that they had got her locked up here, and that she had turned State’s evidence and told the details of the whole thing. That was when I made this statement. I had not made a statement up until then. Up until the time that Mr. Anderson brought me in here and told me that she had made a statement I had not made a statement. I hadn’t ever told him I had killed him. After Mr. Anderson told me she had confessed to the whole thing and turned State’s evidence I made this statement. Nobody told me after I had signed this statement, Mr. Anderson or anybody else, that Pearlie (appellant) had not turned State’s evidence. He told me she had before I made any statement. I did not see the statement that she had made. He did not show me a statement. She didn’t offer to testify against me in my trial. They didn’t use any statement she made against me in my trial.”
After appellant was arrested she made a written statement in which she said that Barrow had told her he was going to kill deceased and had later told her that he had carried his threat into effect. In this statement appellant denied that she encouraged Barrow to commit the offense. As shown on page 42 of the statement of facts, a witness for the State, who tesified concerning the statement made by appellant and Barrow, said: “He (Barrow) made his written statements before her statement was made. I think someone in my presence told him that Pearlie Browney, the defendant here, had been arrested.” The testimony of the same witness, as shown on page 44 of the statement of facts, is as follows: “I was with Mr. Anderson when he went and got Bee Barrow. I do not think Mr. Anderson told Bee that Pearlie had signed a statement. I do not think she had said anything before then about the killing. I toitnessed both statements. Bee Barrow made the first one. I do not think we had talked with Mrs. Browney at that time. At the time Bee Barrow had MADE HIS STATEMENT Mrs. Browney had not at that time told that Bee Bar-row had committed the crime." (Italics ours.)
*94The foregoing testimony, and particularly that part italicized, manifestly supports our statement in the original opinion to the effect that Anderson’s statement to Barrow that appellant had turned State’s evidence and charged him with the murder of deceased was not true. Thus, we have a situation in which the State’s witnesses, whose credibility was vouched for by the State, gave testimony showing that Barrow declined to make a statement until it had been falsely stated to him by one of the officers that appellant had turned State’s evidence and charged him with the offense. Under the circumstances, we are constrained to adhere to our conclusion that the confession was not admissible to support Barrow because made after there existed a motive or inducement to fabricate. In this connection, it is observed that the position of State’s counsel that objection was not made to the confession on the specific ground that there was a motive to fabricate is correct. However, in view of another trial and of the contentions now made, we think attention should be called to the matter.
We are constrained to adhere to our conclusion that under the facts reflected by the record, that part of the charge of the court referred to in the original opinion was erroneous, and calculated to prevent appellant from receiving a fair and impartial trial at the hands of the jury. We deem it unnecessary to enter into further discussion of the question.
The State’s motion for rehearing is overruled.
Overruled.