This is a conviction for murder of the first degree, with a life sentence in the penitentiary, for the homicide of Ben Warren. Quite a number of errors are assigned, but we desire to discuss but one, holding those not referred to to be not well taken.
From a bill of exceptions it appears that, on the morning after the homicide, this defendant, Wood, and several other witnesses, were sworn and placed under the rule in charge of the sheriff; and that they were so held during the entire day and a portion of the night. About twelve o’clock of that day the sheriff was informed, either by Germany, the county judge, or Scarborough, the county attorney, that suspicion was pointing very strongly to Mr. Boyett and defendant, Wood, as the guilty parties. About sundown of that day, the sheriff was further informed, either by the county judge or county attorney, or Steele, the justice who was holding the inquest, that the developments before the inquest were such as would saddle the guilt upon Boyett and Wood, this defendant, and that after they were examined as witnesses, he had better separate them from the other witnesses, and not permit them to talk to any body; that, some time after dark of that day, the sheriff inquired of Mr. Eidson if *438he could take charge of Boyett, Wood and one Hylton, and hold them for him, and keep them from talking to any one, and, at the same time, asked Eidson if he had his gun. Eidson replied that he would," on his return from his supper. Boyett, Wood and Hylton were taken from the room in which all the witnesses were kept, before the coroner’s jury, one at a time, and after testifying each was taken and placed in Eidson’s charge. The recollection of the sheriff, who was a witness, was that they were not placed in charge of Eidson until after testifying before the jury of inquest. Wood was not informed by the sheriff of the suspicion against him before he testified at the inquest. The above is substantially the testimony of- the sheriff bearing on the question presented in the bill of exceptions.
Mr. Scarborough, county attorney, states that he had a number of witnesses, including defendant and Boyett, placed under the rule early in the morning, and before the jury began their investigations, for the double purpose of holding them as witnesses, preventing them from conversing with their friends, and preventing the escape of the parties if the facts developed should authorize their arrest. These purposes were not made known to any of the parties confined. That he told the sheriff before Boyett, Wood or Hylton testified that after they testified to take them to another room and keep them separated from the other witnesses; that the defendant was not released from the time he was placed under the rule until his arrest.
Eidson states that about sundown the sheriff requested him to take charge of Wood, Boyett and Hylton ; that he agreed to do so on his return from supper; that on his way home Germany, county judge, told him that Boyett and Wood were the guilty parties, and would, as such, be sent to jail; that when he returned the sheriff brought Boyett, Wood and Hylton and placed them in his charge in the court house, in witness’s office, and placed him between the door and said parties, and instructed him to hold them. Some time after this the sheriff came and got said parties, one at a time, and carried them away; that he did not know where they were taken, but thought they were taken before the jury of in.quest, which was in session in a room in the court house not far from his office; that the parties were placed in his charge about eight o’clock at night, and within about fifteen or twenty minutes afterward they were first placed inhis charge. Wood appeared to be very anxious, and asked him if he knew how matters stood. Eidson told Wood that he would *439have to go to jail that night; that this was a voluntary statement, not having been made to Wood by instructions from the sheriff or any one else. Eidson is an attorney, and upon the trial of this cause appeared for appellant. All of this was said and done between eight and nine o’clock that night. Eidson was positive it was not later than nine o’clock. This occurred before the sheriff took either of the parties out of his office, as herein before stated.
Mr. Scarborough further testified that Wood gave his evidence before the jury of inquest between ten and eleven o’clock that night. His best judgment was that it was about eleven o’clock and that Wood was not notified that he would be charged with the murder, nor that his evidence would be used against him.
Appellant Wood testified before the jury of inquest, and his evidence was reduced to writing and properly authenticated. Upon the trial the State, over the objections of appellant, introduced in evidence his testimony taken before the inquest. Appellant objected upon the grounds that he was under arrest at the time the evidence was given and was not cautioned as the law requires, and because the testimony was not voluntary. These objections were overruled, the evidence admitted, and appellant excepted and reserved the point by proper bill of exceptions.
This question will be treated independently of our statute upon the subject. A most admirable opinion upon this subject will be found in the case of The People v. McMahon, 15 New York. In that case the authorities are collated and from them the following rule is.deduced: When a party is examined as a witness before a magistrate or coroner’s inquest, and is afterward prosecuted for the same offense under investigation, his testimony so taken will not be received against him if, at the' time of his examination, he was charged or suspected of the crime and that he was informed of the charge or suspicion against him. This, we believe to be the correct rule; that which is supported by the weight of authority.
It will be seen that the fact of arrest or no arrest does not figure in this proposition. Whether the party be under arrest, either by warrant or without warrant, or is not under arrest, if he is charged or suspected of the crime, and knows himself to be charged or suspected, his testimony taken before the magistrate or coroner’s inquest is not admissible against him.
Fow, let us apply this rule to the case in hand. Appellant *440was informed by Eidson, who had him in charge, that he would be sent to jail that night. He had been, with a number of other witnesses, under the rule in another room; was taken by the sheriff from among them, and placed in charge of Eidson. He saw the sheriff when he placed Eidson between him and the door, and heard the sheriff tell Eidson to “ hold them.” From these facts it is evident to us that appellant was thoroughly informed that he was suspected of the murder of Ben Warren.
Opinion delivered December 17, 1886.This being the case, his testimony taken before the coroner’s inquest was not admissible as evidence against him; was not “voluntary” under the construction given that word in the McMahon case and authorities therein cited.
We have been considering the competency of this evidence under common law rules, without regard to our statute. How stands the question when viewed in the light of our statute?
If in arrest or custody, not being cautioned as the statute requires, his testimony is evidently not competent. Was appellant in arrest when he gave his evidence before the inquest? For the party to be in arrest it is not necessary that the officer should say to him, “I arrest you,” or “You are my prisoner,” or to use any certain words in making the arrest. The arrest may very clearly be proved by the surrounding facts. (Nolan v. The State, 9 Texas Ct. App., 419.)
Looking, then, to the facts which surround this matter, there can be no question but that appellant was in arrest, and not being cautioned as the code requires, his testimony taken before the inquest was not competent evidence against him. We must not be understood as indicating that, because appellant was sworn and placed under the rule and testified as a witness, therefore he was under arrest or in custody within the meaning of Articles 749 and 750, Code Criminal Procedure.
For the error in admitting the testimony of appellant taken before the jury of inquest, the judgment is reversed and the cause remanded.
Reversed and remanded.