The defendant was indicted on December 23, 1876, in the district court of Robertson county, charged with the murder of James Monroe on August 19, 1876. He was tried and convicted at the January term, 1877, of said court, and his punishment assessed at death. From that judgment the defendant has appealed to this court, and the errors assigned are:
1st. The court erred in admitting the confessions of the defendant.
2d. The court did not charge the law applicable to the evidence.
We will state so much of the case as is necessary to properly consider the first error assigned. The witness George Brown says he went to the house of the deceased on Sunday morning, August 20, 1876; that he found the deceased, *333James Monroe, in a dying condition, and that he died the same day from wounds received on his head (from being bruised and cut). Monroe was lying on a bed, in the middle of the floor, speechless. There was a bloody pair of pants behind the door, two keys lying on the floor, two trunks in the room, one of which was broken open. Neither of the keys would fit the trunks. There was some cotton on the west end of the piazza of Monroe’s house, and a dog tied near it. The witness George Brown said that he after-wards suspicioned defendant; that he arrested him on the following evening and took him to Bremond, in Robertson county, where he kept him under arrest until the examining trial was had ; that, on the day of the examining trial, defendant took him [witness] into a room, and made several confessions, which he [witness] knew were false ; and then, the witness says, the defendant made a confession stating the following facts, viz.: That he [defendant] had killed the deceased ; that he threw the pants behind the door; and that the keys would not fit the trunks, so he threw them down on the floor ; that when he went to Monroe’s house he saw a dog tied on the west end of the gallery,'near some cotton : that the dog growled at him, and he went and got a grubbing hoe which he saw lying under the house, and made the dog quiet down; and that he then went into the house and killed the deceased. * * *
The testimony shows that the murder of Maj. Monroe was talked of a great deal in the neighborhood, from the time he was found in a dying condition, on August 19th, for several days, and that defendant could have heard from others the condition in which the deceased and the house were found on the morning he was found in a dying condition. The witness Brown further testified that there was much excitement in Bremond, and a great many people going and coming before and during the examining trial.
To the admission of these confessions, when offered by the *334attorney for the' prosecution, the counsel for the defendant objected, “because said confessions were not shown to have been the voluntary confessions taken before an examining court, nor made after the defendant had been cautioned that they might be used against him; nor were sufficient facts found to be true, in connection with said confession, to allow it to be admitted in evidence which objections were overruled by the court, because, in the opinion of the court, said facts were found to be true ; and to which ruling the defendant excepted and took his bill of exceptions.
Witness Jones says he was sheriff of Robertson county; that he went to Bremond a few days after the murder, to bring the accused down to jail; that he found considerable excitement, and the people were threatening to “ mob the defendant;" that he made defendant get into a baggage car, and then he [witness] got into the car and locked it, to keep the men from getting at defendant; that, while in the car, he told defendant to tell him the truth, and then defendant confessed, and made a similar statement to the one made to the witness Brown.
The record shows that the counsel for the defendant asked the court also to exclude this testimony from the jury, because said confessions were made while the defendant was in the custody of an officer; and for further reasons, such as were made to the introduction of the confessions of the defendant" when the witness Brown was asked to detail them.
This motion of defendant’s counsel was overruled by the court (as stated in his 2d bill of exceptions), because, in the opinion of the court, the facts were found to be true ; to which ruling the defendant excepted.
It has long been the law in this state that, before confessions can be admitted in evidence, it devolves on the state to show that they were voluntarily made. This is laid down by the rule in the case of Cain v. The State, 18 Texas, 390. Justice Wheeler, in this case, says : “ Observation and expe*335rience have led the most eminent and enlightened judges in the administration of the criminal law to the conclusion—and it has become the established doctrine and rule for the government of courts—that the evidence of verbal confessions of guilt is to be received with great caution.”
Mr. Greenleaf lays down the correct doctrine, gives the reason of the rule why such confessions should be received with great caution, and has given ample illustration of its application, in his able treatise on Evidence, to which it will suffice to refer. Greenl. on Ev., ch. 12, “ Of Confessions,” sec. 214 et seq.
The rule of evidence in regard to such confessions is clearly laid down in our Code of Criminal Procedure. Article 3126, Paschal’s Digest reads: “ The confession of a defendant may be used in evidence against him if it appear that the same was freely made, without compulsion or persuasion, under the rules hereinafter prescribed.”
Article 3127 reads : “ The confession shall not be used if at the time it was made the defendant was in jail, or other place of confinement, nor while he is in custody of an officer, unless such confession is made in the voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him; or unless, in connection with such confession, he make statement 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 instruments with which he states the offense was committed.”
In this case, as we have seen, the court let in the confession of the defendant, because it believed that the defendant, in his confession, stated sufficient facts, that were found to be true, to let in the confession.
In the case of Warren v. The State, 29 Texas, 372, the court was requested to charge the jury that, if the confes*336sions made by the prisoner were not free, and were made to relieve himself from anticipated danger, although such danger did not exist, they must disregard the confessions of the prisoner, and make up their verdict on the other testimony. The court gave the charge with the qualification that, “ if some of the facts confessed were found to be true by the other evidence, the jury may consider them all true.” The supreme court reversed the judgment for error in this-qualification, and Donley, J., in commenting upon this-action of the lower court, says: “The instructions were given with a qualification that did not restrict the jury as to the character of the facts and circumstances that should be found to be true in order to authorize them to consider the confessions of the defendant, made under duress. The facts- or circumstances which are found to be true must be such facts and circumstances as may conduce to establish the guilt of the accused.”
Under the common-law rules of evidence, though a confession may have been obtained by means of undue inducement, yet if, in consequence of the information obtained from the prisoner, any fact relative to the offense is brought to light, such as the discovery of the property stolen, or the instrument with which the offense was committed, it is competent to give in evidence the fact that the stolen property, or the instrument with which the offense was-committed, has been discovered in conformity with the prisoner’s information. The statement as to his knowledge of the place where the stolen property, or the instrument with which the crime was committed, is to be found, being confirmed by the fact of their finding, is thus proved to be true, and not fabricated in consequence of any inducement. It is competent in such cases, where the common-law rule of evidence prevails, to inquire whether the prisoner stated that such articles would be found by searching, and to prove that they were found, and upon this the jury would have to *337consider whether the prisoner, who knew of their concealment, had not himself concealed them, or was privy to it; hut the confession of the crime itself would not be admissible.
We believe that, since the adoption of Article 3127 of our Criminal Code of Procedure (as we have given it), the rule as to the admissibility of such confession has been changed in one respect. In this state, when a prisoner makes a statement of facts, and in consequence of such information the property stolen, the bloody clothes of the defendant, or the instrument with which he says the offense was committed, or any other material fact, is discovered, such statement, together with the confession of the crime itself, is proper testimony to go to the jury.
So far as the evidence shows, the defendant, in the statement made to Brown and Jones, did not tell what became of the hoe with which he said he killed Monroe. The confession in regard to the hoe was the only other fact that was not known to all the witnesses independent of the confession of the accused. And there is nothing in the record to show that it has ever since been discovered by reason of the statements made by the prisoner to Brown or Jones.
The state failed to show that the things in and around Monroe’s house wore not placed in their position by some other person than the murderer. The witness Susan Smith first found the murdered man, and gave the alarm to one Thompson, who was the first person to enter the house on that fatal morning, and the pants themselves may have been placed behind the door by some one else; and, with the excitement in the neighborhood, it would be very natural that the defendant should hear the condition of Maj. Monroe, and the appearance of the room in which he was murdered, spoken of.
The defendant, at the time he made the confessions which were used against him, was evidently greatly alarmed, and in fear of death from mob violence, and his mind greatly *338confused in contemplating the awful condition to which he was exposed, and in a condition, both by word and act, to conform with implicit obedience to the wishes and desires of those from whom he feared the harm.
Mr. Wharton, in speaking of the caution to be used in regard to such confessions, says: “In capital cases these cautions should be applied with peculiar jealousy. It is hardly supposable, it has been well said, that a man possessed of himself would make a confession to take away his own life. It must generally proceed from a promise or hope of favor, or from a dread of punishment; and, in such situation, the mind is agitated—they may be easily tempted to go further than the truth.” We believe that the 1st assignment-of error made by the defendant is well taken ; that the confessions of the defendant should have been excluded from the jury.
When we consider this case in the light of the testimony, when we measure it by the authorities cited by the able counsel for the prisoner, and, most of all, when we remember how material the confessions are, we cannot affirm the judgment of the district court, believing, as we do, that the confessions of the defendant were improperly admitted.
We have given this case that calm consideration which a question of life and death demands. The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.