Appellant was indicted with one Ed Vining for burglary, and his punishment assessed at two years in the reformatory.
There is but one question to be considered. The State was permitted, over the objections of appellant, to prove by the witness Holtzclaw that appellant admitted his participation in the burglary. It was shown at the time of his confession that appellant was under arrest, and was neither warned nor cautioned; that the stolen property had already been recovered, having in fact been delivered to the officer by appellant himself. It was further shown that appellant was weakminded, through disease, though perhaps he knew it was wrong to break into a store or steal. It is well settled that confessions made by one while under arrest, who is unwarned or uncautioned, and which confessions do not lead to the discovery of any fact or circumstance connecting, or tending to connect, defendant with the crime, are illegal testimony, and will necessitate a reversal. Van Musgrave's case, 28 Texas Crim. App., 57; Davis' case, 23 So. W. Rep., 687; Jackson v. The State, 29 Texas Crim. App., 458; Willson's Crim. Stats., secs. 2472, 2473.
Had the alleged confession been made at the time when appellant was asked about the burglary, and went and got the pistols, a different question would have been presented. But the confession here sought to be introduced was made subsequently, and after appellant denied any participation in the burglary itself, and while under arrest. There is no question as to the materiality of the evidence, for it was offered and introduced over appellant's objection after the testimony had closed, and the opening argument had begun.
The judgment is reversed and cause remanded
Reversed and remanded.
Judges all present and concurring.