On a former day of the present term of this court the judgment of the court below, rendered in this case, was affirmed. The defendant having submitted a motion for rehearing, accompanied by briefs, we have given the record and the questions presented by defendant’s counsel a careful examination and full consideration, and we now conclude that we erred in affirming the judgment of the court below, and that the defendant’s motion for rehearing should be granted, and the judgment reversed and cause remanded for a new trial.
We find but a single error in the proceedings of which defendant can justly complain. The evidence against him was entirely circumstantial. It is well settled that when the inculpatory evidence in a case is purely circumstantial, the charge of the court must expound to the jury the nature and conclusiveness of that character of testimony, to warrant a conviction upon it. It is a part *663of the law applicable to the case, and cannot be omitted from the charge without causing error fatal to the conviction. (Hunt v. State, 7 Texas Ct. App. 212; Struckman v. State, Id. 581; Cave v. State, 41 Texas, 182; Burrill v. State, 18 Texas, 713.) In this case the court wholly failed to instruct the jury in regard to circumstantial evidence, which error was properly complained of by defendant in a bill of exceptions, and also in his motion for a new trial.
The written admission of certain facts, which had been signed by the defendant, and which was read in evidence on the trial, was not a confession, and was not governed by the same rules as to its admissibility. It was his own voluntary act, executed, no doubt, for the purpose of avoiding a continuance of the case by the' State, on account of the absence of a material witness. It was not shown that it had been made by him ignorantly, or through mistake, nor that it had been obtained from him by any improper means. He went to trial knowing that the State would rely upon this instrument to prove the material facts.therein admitted by him. We think the paper was clearly admissible.
The offense of burglary was charged against the defendant in two counts; the first count charged burglary, in the day time, and the second count charged it in the night time. Before the trial of the case commenced the court required the district attorney to elect which of these counts he would proceed to try the defendant upon, .and he elected to proceed upon the second count. In this we think the court erred. An indictment may contain as many counts, charging the same offense, as the .attorney who prepares it may think necessary to insert. (Code Crim. Proc. art. 433.) “A good pleader will insert as many counts in an indictment as he believes are necessary to provide for every possible contingency in the evidence.” (Dill v. State, 1 Texas Ct. App. 278.) *664Where several counts are introduced in an indictment solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same-offense, as in this case, the State cannot properly be required to elect. (1 Whart. Am. Cr. Law, 416; Dill v. State, 1 Texas Ct. App. 278; Weathersby v. State, Id. 643; Dalton v. State, 4 Texas Ct. App. 333; Irving v. State, 8 Texas Ct. App. 46.)
The offense charged in each of the counts in this indictment is the same; the- only difference being that one count charges it to have been committed in the day time and the other that it was committed in the night time. The utility of several counts is strongly illustrated in this, case. The evidence made it uncertain whether the burglary was committed in the day time or in the night time. By having two counts in the indictment, this uncertainty in the evidence was entirely obviated, for it would make-no difference whether the offense was proved to have-been in daylight or in the night, it would be covered by one or the other of the counts. But, if the State can be-compelled to elect in such cases, and proceed to trial upon only one count, this would completely destroy the utility and purpose of several counts, and render them altogether worthless. We thought it proper to call attention to this error of the court, that it might not be persisted, in on another trial of this case.
Because of the omission of the court to charge the jury the law relating to circumstantial evidence, the judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.