In his motion for rehearing, appellant seeks a modification of the former opinion.
Counsel insists that the declaration of the appellant not a confession within the meaning of Art. 810, C.C.P., and therefore was not admissible, although it resulted in the discovery of the car in which the homicide took place, as well as the blood of the deceased and the *Page 61 weapons used. Mr. Branch, in Section 59 of his Ann. Tex. P.C., defines a confession thus:
"The Statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the State as a criminative fact against him."
Many cases are collated from which the correctness of this definition is deduced. Many others are found collated in Vernon's Crim. Stat., Vol. 2, Sup. 1922, p. 2592. Among these are Carter v. State, 23 Texas Crim. App. 508; Roberts v. State,83 Tex. Crim. 139; Kyle v. State, 86 Tex.Crim. Rep.; Willoughby v. State, 87 Tex.Crim. Rep.; Bloch v. State,81 Tex. Crim. 1; Dover v. State, 81 Tex.Crim. Rep.. Willoughby's case, supra, which characterizes the evidence as a confession is not distinguishable from the present one. Willoughby declared that certain suit-cases which had been found by the officers belonged to him. He was under arrest, and the admission of this against him was held error for the reason that it was a confession and the suit-cases had been previously discovered. In the instant case, appellant told the officers where the automobile was situated. It had not previously been found and its locality was unknown. It was discovered through his confession. It may be added, however, that his declaration was an admission against his interest, and if it was not a confession within the provisions of Article 810. C.C.P., no reason for excluding it is perceived. In other words, if it was aconfession, it became admissible by reason of its leading to the discovery and identification of the automobile in which the deceased was killed; if not a confession, there is no rule of law rendering it inadmissible.
Another question presented in the motion is that the evidence did not warrant a charge on principals; that there was no evidence of a conspiracy to commit murder, but that the evidence of a conspiracy, if any, pointed to an intent to commit a crime, growing out of the collecting of an insurance policy upon the pretense that appellant's automobile was missing. It may be that the evidence was such as might have rendered it appropriate that the jury be told to determine whether there was a conspiracy and whether it related to the murder or simply to the fraudulent acquisition of money, and if to the latter alone, the declaration of the alleged co-conspirator could not be used to show appellant's guilt of murder.
No attempt was made to fully state the facts in the original opinion. Enough of them, however, have been adverted to support the view expressed therein that the question of a conspiracy to commit murder being one of fact, and in admitting the declaration of the co-conspirator, as mentioned in the original hearing, no error was committed.
The motion is overruled.
Overruled. *Page 62