There are two counts in the indictment; the first charging that the defendant burned his own house, the said house being at the time insured; the second charged that he burned his own house, thereby endangering the safety of houses belonging to other persons. We are of the opinion that the indictment is substantially sufficient in both its counts, and that the defendant’s exceptions thereto and his motion in arrest of *25judgment were properly overruled. The locus in quo of the house burned is alleged sufficiently, the allegation being “a certain house then and there occupied, owned and controlled by him, the said Baker,” the words- “then and there” referring to the time and county previously stated. It was unnecessary to allege the amount of the insurance upon the house, the company in which it was insured, or other facts in relation to the insurance. It was only necessary to allege that, at the time the house was burned, it was insured. That portion of the first count in the indictment which states that “the amount of said insurance and a further description of which is to the grand jurors unknown” is surplusage, and should have been treated as immaterial, and wholly disregarded on the trial.
With respect to the second count, we do not think it was essential to allege who owned the houses which were endangered by the burning of defendant's house. Such an allegation is usual and proper, but not absolutely essential, as it is immaterial who owned the houses so endangered, if they were owned by other persons than the defendant.
We learn, from a statement made in the charge of the court, that the county attorney elected to try the defendant upon the first count in the indictment. This is all the information afforded by the record as to the election. There is no notice of it taken in the judgment entry, or in any other entry in the case. ' We must presume, therefore, from the statement made in the charge of the court, that the State voluntarily abandoned and dismissed the second count. It does not appear that such election was required by the court, nor do we think it could properly have been required. It is only when distinct felonies, not of the same character, are charged in different counts in the same indictment that the State may be required to elect upon which count it will claim a conviction. (Lunn v. The State, 44 Texas, 85; Boles v. The State, 3 Texas. Ct. App., 650; Chester v. The State, 23 Texas Ct. App., 577.) In this case the same felony is charged in each count.
But, the State having elected to try the defendant upon the first count, and the court having sanctioned such election, that count alone should have been submitted to the jury, and the jury should have been explicitly instructed that they could not consider and could not convict upon the second count. In defining arson the learned judge, in his charge to the jury, embraced both counts in the indictment; that is, burning an insured house, and *26burning a house the burning of which endangered other houses not belonging to defendant. That portion of the charge which embraced the arson charged in ¿¡he second count is erroneous because it is not the law applicable to the case, and because it submitted to the jury an issue not in the case. This error in the charge, not having been excepted to, would not be reversible error unless it was calculated to injure the rights of the defendant, and whether the error is of that character we do not determine, as it is unnecessary that we should do, there being another error for which the judgment must be set aside.
We are of the opinion that the court erred in admitting the testimony of the witness Pelfry, detailing a conversation which the defendant had with him at a time when the defendant was under arrest. This testimony was evidently introduced by the State as inculpatory; as a circumstance tending to prove defendant’s guilt; as a quasi confession of guilt. If not introduced for this purpose, it was wholly irrelevant and should for that reason have been rejected.
If introduced as inculpatory evidence, it was inadmissible because the statements were made by the defendant while he was under arrest, and without being first cautioned that any statement h.e made might be used in evidence against him. The fact that, a few hours prior to the time of making said statements, he had been cautioned by the magistrate before whom the charge against him was being investigated, that a voluntary statement, if he should make one, might be used in evidence against him, does not, we think, dispense with a caution with respect to statements subsequently made, on another occasion, to another party and under entirely different circumstances. The caution given him by the magistrate related alone to a voluntary statement,—a judicial proceeding in the presence of the court,—a written statement to be signed by the defendant It would be stretching the rule too much, we think, to apply a caution made under such circumstances to any and all statements made by the defendant on subsequent occasions.
We do not agree to the rule as state in arnes v. The State, 36 Texas, 356, that the caution must immediately precede the confession. That rule, we think, is too extreme, and in the subsequent case of Maddox v. the State, 41 Texas, 205, it was not strictly adhered to. We think the true rule is that, if the defendant was properly cautioned that statements made by him might be used in evidence against him, and he thereafter, within *27a reasonable time, made statements reasonably coming within the scope of the caution given him, such statements would be admissible against him.
Opinion delivered February 8, 1888.But we do not think the statements made by the defendant in this instance come within this rule. They are not statements reasonably embraced within the caution given the defendant by the magistrate, for that caution was limited to a voluntary statement, and was not intended to, and could not, we think, apply to any other statement. This is a new question as far as we are aware, and we have been unable to find any authority which has aided us in reaching a conclusion upon it. The conclusion we have arrived at is based alone upon what we conceive to be the spirit of the law regulating the admissibility in evidence of confessions. Confessions of persons in confinement or in the custody of an officer are only admissible under the conditions prescribed in the statute, and the caution required in the case of a voluntary statement is a distinct caution from that required in the case of other confessions, and is applicable alone to the statements made before the magistrate, reduced to writing and signed by the defendant. (Code Crim. Proc., art. 750.)
Other errors assigned and presented in the brief and argument of counsel for defendant have received our attention, but we are of the opinion that the only material errors are those which we have discussed, and because of the last named of which the judgment is reversed and the cause is remanded.
Reversed and remanded.