From the evidence before us it does not appear that the witness Massey was an accomplice. He had been informed by defendant of his (defendant’s) intention to steal Justice’s horse, and he immediately told Justice’s sons, and Justice himself subsequently, of defendant’s intention. It is true that Justice and Massey then arranged that Justice should have his horse at a certain place, doubtless with a view that they might capture defendant in the very act of committing ■the theft, and it is' inferable that there was a further understanding between the parties that Massey was to accompany the de*127fendant to the place and at the time when the theft was to be committed, ostensibly as his confederate, but in fact that he might aid in his arrest after the crime was consummated. Had this agreement been carried out, and the horse stolen at the time, place and under these circumstances mentioned, Massey, in law, would not have been an accomplice in the theft. (Pigg v. The State, 43 Texas, 108; Johnson v. The State, 3 Texas Ct. App., 590.)
But this agreement was not carried out, and the horse was stolen on another occasion and in a different place. Instead of being an accomplice, it appears to us from the evidence that Massey acted throughout the part of a law abiding citizen who, knowing that a crime was about to be committed, did, or was willing to do, all in his power to prevent it or bring its perpetrator to punishment. There was no occasion for the court to charge the law with regard to accomplice testimony in this case.
Exceptions were saved to certain portions of the evidence admitted over objections of defendant. It appears that after defendant’s arrest at the house of one Boston, he was taken some four miles to the house of one Pace. Whilst there Pace, at request of defendant, wrote an order to Boston to deliver the horse to the bearer, which order was also signed at his request for defendant by Pace, and then was handed to the witness, who went back with it to Boston’s to get the horse. He did not find the horse at Boston’s, but says that about five miles from Oatmanville, on his road home, “I was attracted by a horse track that I recognized as the track of the horse I was hunting, and followed it home. When I reached home the horse was there.”
Inasmuch as defendant was in custody when the order was written, it is insisted that it was inadmissible in evidence as an admission or confession by the defendant, under Article 750, Code Criminal Procedure, because it did not state facts or circumstances found to be true which conduced to establish his guilt, and that the horse was not found at Boston’s. By previous decisions construing this statute, it seems that the right to use such admissions and confessions is not limited to such cases only where it is shown that the property was actually found at the place indicated in the confession, but they are admissible also whenever they furnish information by which the property is recovered, or when the property has been traced by means of the information received from the prisoner. (Selvidge v. The State, *12830 Texas, 59; Strait v. The State, 43 Texas, 486; Warren v. The State, 29 Texas, 370; Zumwalt v. The State, 5 Texas Ct. App., 521; Berry v. 27ze State, 4 Texas Ct. App., 492; Davis v. The State, 8 Texas Ct. App., 510; Kennon v. The State, 11 Texas Ct. App., 356.
Did the information conveyed in the order lead to the recovery of the horse, or was it the means by which the horse was traced and finally recovered? On account of the information the witness went to Boston’s to get the horse. He did not find it there, nor did he there discover any evidences by which he was enabled to trace the horse. From there he started home, and about “five miles from Oatmanville” he finds a track which he recognizes as his horse’s track, and which he traced or followed home, where he found the horse. In another portion of his testimony he says: “Boston’s is about four miles from Oatmanville.” Now, was Boston’s between his house and Oatmanville and four miles nearer than the latter place? or was it four miles beyond Oatmanville, going from his house? If it was nearer by four miles than Oatmanville, then the track which he found, being five miles from Oatmanville, must have been within one mile of Boston’s. If, however, Oatmanville was nearer by five miles than Boston’s, and the track was found four miles from Oatmanville on his road home, then the track was discovered for the first time by witness some nine miles from Boston’s, where he was told by defendant’s order that the horse was to be found. If the track was found within a mile of the place where defendant’s information led him to expect to find the horse, and by means of the track there found he was enabled to trace the horse until he was recovered, we might be inclined to hold that the evidence which brought about these proximate results was admissible under the rule of the statute. But if the track was for the first time discovered nine miles from Boston’s, the distance would be entirely too remote to admit the conclusion that the track was discovered and the party enabled to trace the horse by means of the information derived from the order given by defendant.
As found in the record, the statement of facts leaves this important question just in this unsatisfactory condition. Feeling convinced that these matters are susceptible of better proof than we have before us, and believing that such evidence is necessary to the admissibility of the order, and that it perhaps *129may be adduced on another trial, the judgment is reversed and the cause is remanded.
Reversed and remanded,
Opinion delivered April 28, 1883.