ON APPELLANT'S MOTION FOR REHEARING.
DAVIDSON, Judge.The judgment of affirmance was predicated upon the conclusion that the confession of appellant to the sheriff of Hardin County became admissible because some of the property stolen in the burglary was discovered as a result thereof.
In his motion for rehearing, appellant insists that we erred in reaching that conclusion.
In Newman v. State, 148 Tex. Cr. R. 645, 187 S. W. (2d) 559, it is made clear that the admission in evidence of the con*402fession of one accused of and upon trial for a violation of the laws of this State is controlled by the laws of this State and by the due process clause of the Fourteenth Amendment to the Federal Constitution, as construed by the Supreme Court of the United States in such cases.
It has long been the established rule in this State that when a prior confession of an accused is obtained as a result of improper influences, subsequent confessions will be received only when it is made to appear that the improper influences exercised in obtaining the first confession did not enter into or influence the making of the subsequent confession. Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177-179; Hernandez v. State, 110 Tex. Cr. R. 159, 8 S. W. (2d) 947; Thompson v. State, 124 Tex. Cr. R. 440, 63 S. W. (2d) 849; Cavazos v. State, 143 Tex. Cr. R. 564, 160 S. W. (2d) 260; Loya v. State, 146 Tex. Cr. R. 197, 172 S. W. (2d) 508.
Where issues of fact arise touching the exercise of improper influences in the making of a confession or a confession subsequent thereto and influenced thereby, it has long been the rule in this State .that such issues of fact should be submitted to the jury for determination, along with the trial of the case.
In determining whether due process has been denied one accused of crime in a State court by the use of a confession, the Supreme Court of the United States will, itself, make an independent examination of the facts, and from the undisputed facts, that court will reach a conclusion. Chambers v. Florida, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716; Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L. Ed. 682; White v. Texas, 310 U. S. 530, 60 S. Ct. 1032; 84 L. Ed. 1342; Lomax v. Texas, 142 Tex. Cr. R. 231, 144 S. W. (2d) 555; Id. 313 U. S. 544, 61 S. Ct. 956, 85 L. Ed. 1511; Ward v. Texas, 316 U. S. 547, 62 S. Ct. 1139, 86 L. Ed. 1663; Lisenba v. California, 314 U. S. 219, 62 S. Ct. 280, 86 L. Ed. 166; Hysler v. Florida, 316 U. S. 411, 316 U. S. 642, 62 S. Ct. 688, 86 L. Ed. 932; Ashcraft v. Tennessee, 322 U. S. 143, 64 S. Ct. 921, 88 L. Ed. 1192; Malinski v. New York, 324 U. S. 401, 65 S. Ct. 781, 89 L .Ed. 1029; Lyons v. Oklahoma, 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481; Haley v. Ohio, 68 S. Ct. 302; Lee v. Mississippi, L. Ed. Advance Opinions, Vol. 92-N0.7, p. 315. (68 S. Ct. 300.)
The admissibility of the confession in the instant case must be tested in the light of the State and Federal rules stated.
*403Here, the trial court instructed the jury to the effect that if appellant made the confession through fear of personal violence by the officers of Jefferson County, the confession was not to be considered for any purpose. By such charge the trial court endeavored to make application of our State rule. The question arises, however, in this connection, whether the facts authorized such a charge in the first instance.
Appellant testified that he had been whipped and beaten with a hose by the sheriff and police of Jefferson County while confined in the jail at Port Arthur. A witness attested the bruised and scarred condition of his (appellant’s) body. Appellant’s testimony as to the beating and whipping was not denied by any person — and this, even though appellant specifically designated the sheriff as having been one of the participants.
In the light of this record, then, it can hardly be said that appellant was not beaten and whipped by the Jefferson County officers whom he designated. That he was so mistreated must be here construed as an established fact.
It is true that the sheriff of Hardin County, to whom the confession here under consideration was made, testified that appellant volunteered to make that confession and that same was freely and voluntarily made, yet the appellant testified, “* * * they (meaning the Jefferson County officers) told me they were going to bring me over here, and if I did not sign a confession they would take me over there and finish me; they turned me over to the Sheriff here; and they said if I did not sign a confession they would carry me back and give me some more, and I would have signed anything.” In addition, appellant testified that he was told by the police what to say in the confession when he was brought to Hardin County and that if he did not sign it they would carry him back to Port Arthur.
Although appellant designated the sheriff as one of the parties and also referred to the police as being the others, none of these nor any other person denied the testimony of the appellant. His testimony as to such facts stands undenied.
From these undisputed facts, then, it is made to appear that appellant was whipped and beaten by the sheriff and police at Port Arthur and told, in effect, to make the confession here under consideration and what to put in that confession. Appellant, upon the trial of the case, denied the truthfulness of the matters stated in that confession.
*404In the light of such facts, we cannot reach the conclusion that an issue of fact was raised for the jury’s determination as to whether the mistreatment accorded appellant at Port Arthur entered into the making of the confession to the sheriff of Hardin County. There is no escape from the conclusion, then, that the confession here used against appellant was not admissible, under our own decisions (Abston v. State, 102 S. W. (2d) 428; 123 S. W. (2d) 902; and 141 S. W. (2d) 337), as also the holding of the Supreme Court of the United States in the cases mentioned.
The sheriff of Hardin County testified that prior to the making of the written confession, appellant made an oral statement to him, as a result of which some of the property stolen in the burglary was recovered.
It is insisted that such fact rendered admissible the written confession under that provision of Art. 727, C. C. P., which reads:
* * or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”
That provision of said article has no application when a confession is obtained as a result of the infliction of physical or mental pain. Colley v. State, 143 Tex. Cr. R. 390, 158 S. W. (2d) 1014.
In the instant case, the inadmissibility of the confession arises by reason of the physical mistreatment by the Jefferson County officers. Such mistreatment stands undenied in the record and therefore brings this case within the rule just stated.
Believing that we were in error in holding admissible appellant’s confession, the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Opinion approved by the Court.