I. To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to the accused, such promise must be positive, and must be made or sanctioned by a person in authority, and must be of such character as would be likely to influence the accused to speak untruthfully. (Rice v. The State, 22 Texas Ct. App., 654.) And so, if the confession • was made under the influence of fear of legal punishment, such fear of itself does not render the confession inadmissible. (Thompson v. The State, 19 Texas Ct. App., 593.)
In the case before us the confession of the defendant was ■evidently not the result of any promise of benefit to the accused. No promise whatever was made to him by any one. It appears from the evidence that the confession was made under the influence alone of the fear of legal punishment. No other influence is shown to have been operating upon defendant’s mind to induce him to make a confession of guilt. Such being the case, we are of the opinion that the court did not err in admitting the confession in evidence.
II. But, whilst the confession was properly admitted in evidence, the court in its charge submitted to the jury, in effect, the question of its competency as evidence, and in doing so instructed that such confession should be considered as evidence if the defendant therein had made statements that were other*86wise found to be true, with relation to the commission of the offense. This portion of the charge was promptly excepted to-upon the ground that there was no evidence to warrant it, and said exception is here presented by proper bill. We are of the opinion that the exception must be sustained. After a careful examination of the evidence before ns, we do not find a particle of testimony even tending to show that any material, or even immaterial, fact connected with the theft was discovered in consequence of the information obtained from the defendant’s confession. (Nolen v. The State, 14 Texas Ct. App., 474. ) This error in the charge having been excepted to at the time of the trial, we must set aside the conviction, notwithstanding such error is, in our opinion, in view of the evidence, immaterial, and could not have injured the rights of the defendant.
Opinion delivered October 26, 1887.The judgment is reversed and the cause is remanded.
JReversed and remandedf.