White, Presiding Judge.
This appeal is from a judgment rendered against appellants in a prosecution wherein they were jointly indicted, jointly tried, and both convicted for the theft of two horses, the property of one Bob Carter.
At the trial, they both joined in an application for continuance, for four absent witnesses, viz., Bob Glover, Albert Bailey, William Post and William McDonald, and swore they expected to prove by said witnesses that they bought the horses of the owner, Bob [149]*149Carter, and paid him for them. Defendants offered no witnesses on the trial, but we presume that both Glover and Bailey were there. Bailey most certainly was, because his affidavit as to the citizenship of Post and McDonald, the other two absentees, is attached as a part to the motion for continuance, and he says nothing about the purchase of the animals from Bob Carter or any one else. If Glover and Bailey were present, then it is clear that defendants were most grievously mistaken as to what they would swear, and the fair presumption is that they were equally as badly mistaken with regard to Post and McDonald, who happened not to be served with process. At all events, if Post and McDonald should testify as proposed in the application, we think, in the light of the other evidence, such testimony would be most probably untrue. In so far as the defendant Lindly is concerned, such testimony is unquestionably shown to be untrue by his proven confessions, which, in material particulars, as we will see shortly, were proven to be true. This application for continuance, even if in conformity with statutory requirements, presents, for the reasons stated, no merit when considered as part of the motion for new trial.
Serious complaint is made that the court permitted, over objections of defendants, the written testimony of Bob Carter, the alleged owner of the stolen animals, as deposed and reduced to writing at a previous examining trial of defendants for this same theft. As a predicate for its admission, the prosecution proved that said Bob Carter was at home, forty miles distant in another county, confined to his room, which he was and had been unable to leave for some months, on account of the effect of a serious attack of measles, which had destroyed the sight of one of his eyes and left him a chronic invalid, with constant pains in the head and palpitation of the heart.
Our statute makes provision for the admission of such testimony “when, by reason of bodily infirmity, such witness can not attend.” (Code Crim. Proc., art. 772.) The same rule applies as is provided for depositions in article 774 of the Code of Criminal Procedure. What is bodily infirmity? Mr. Webster defines “infirmity” “a disease,” “a malady,” “feebleness.” Mr. Bouvier says infirm means weak, feeble, and he remarks that “where a witness is infirm to an extent likely to destroy his life or to prevent his attendance at a trial his testimony de bene esse may be taken at any age.” (Bouvier’s Law Dic., infirm, de bene esse.)
Speaking of the circumstances which justify the use of the [150]*150testimony of an absent witness, Mr. Wharton says: “Sickness falls under the same rule. Thus, in an old case where a witness-on his journey to the place of trial was taken so ill that he was-unable to proceed, we find it recorded that his deposition was allowed to be read; and the same liberty would apply to depositions taken in a prior case between the same parties. At the-same time it must appear that the sickness is of a character imposing permanent inability” (1 Whart. Ev., 2 ed., sec. 179; 1 Greenl. Ev., section 163); that is, “when, from the nature of the illness or .other infirmity, no. reasonable hope remains that-the witness will be able to appear in court on any future occasion.” In his work on Criminal Evidence the same learned^ author says: “Whether the deposition of a sick or insane witness can be taken in a criminal case depends upon local statutes, but wherever the deposition has been duly taken in a preliminary procedure it can be received in subsequent proceedings against the same defendant, the witness being unobtainable.” (Whart. Crim. Ev., sec. 230.) This was the common law and is the general rule.
But our statute does not declare that the “infirmity” must be permanent. Under a modern statute, somewhat similar to ours, in England, it was said “there is nothing in the words of the statute which renders it necessary that the inability of the witness to attend at the trial should be permanent; it may, therefore, be implied that it may not be so. Before the statute, it seems to have been doubted whether a mere temporary illness (as with a woman about to be confined) was a sufficient ground for admitting the deposition. * , * * And there can be no doubt that a "judge would now exercise his discretion and decide whether in the interests of justice it were better to read the deposition or to adjourn the trial in order to obtain the oral testimony of the witness'.” (See note to section 230, Whart. Crim. Ev.) We think this is the correct doctrine applied-to the construction to be given -our statute in so far as it relates to-bodily infirmity. The facts as to the witness Bob Garter would show him to be in a condition of bodily infirmity by reason of which he was unable to attend, and the court did not err in permitting his testimony to be read.
When the prosecution proposed to introduce in evidence the confessions of the defendant Lindly, they were objected to by both defendants upon the ground that he, Lindly, was at the time in jail, and he had not been previously cautioned that they [151]*151might be used against him; and said confessions were also objected to by the defendant Collins because they were not admissible against him, he not having been present when they were made by Lindly. Lamaster, the city marshal of Honey Grove, who arrested defendants, swore that after he had put them in jail, he had a talk with Lindly in the absence of Collins, and Lindly said “that Collins took the horses in Hopkins county, Texas, on the night before, and tied the mare out all night, and came by for him next morning, leading the mare. That then Collins told him about having taken the mare, and told him (Lindly) to come and go with him, Collins, to Honey Grove, and that they would sell her, and they would have a bust on the money. * * That the mare and colt belonged to Bob Carter, of Hopkins county, near Fairlands, and that if he, witness, would write to the post master at Fairlands, he would send the letter to Carter, and that they would learn that the mare belonged to Carter. Witness stated that he wrote to Bob Carter, in care of the post master, about the mare, and in a few days he (Carter) came to Honey Grove in company with J. W. Cundiff, and went to the stable where the mare and colt had been placed by witness, and pointed them out and took them off with him.”
An exception to the rule that a confession made in arrest can not be used unless the party has first been cautioned that it may be used against him is where, “in connection with such confession, he makes statement of facts (or of circumstances that are found to be true, which conduce to establish his guilt.” (Code Crim. Proc., art. 750.) Such was the case in this instance. His statement as to who was the owner of the animals was found to be true, and the statement did conduce to establish his guilt. The confession was properly admissible under the circumstances as against the defendant Lindly. (Speights v. The State, 1 Texas Ct. App., 551; Walker v. The State, 9 Texas Ct. App., 38; Kennon v. The State, 11 Texas Ct.
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White, Presiding Judge.
This appeal is from a judgment rendered against appellants in a prosecution wherein they were jointly indicted, jointly tried, and both convicted for the theft of two horses, the property of one Bob Carter.
At the trial, they both joined in an application for continuance, for four absent witnesses, viz., Bob Glover, Albert Bailey, William Post and William McDonald, and swore they expected to prove by said witnesses that they bought the horses of the owner, Bob [149]*149Carter, and paid him for them. Defendants offered no witnesses on the trial, but we presume that both Glover and Bailey were there. Bailey most certainly was, because his affidavit as to the citizenship of Post and McDonald, the other two absentees, is attached as a part to the motion for continuance, and he says nothing about the purchase of the animals from Bob Carter or any one else. If Glover and Bailey were present, then it is clear that defendants were most grievously mistaken as to what they would swear, and the fair presumption is that they were equally as badly mistaken with regard to Post and McDonald, who happened not to be served with process. At all events, if Post and McDonald should testify as proposed in the application, we think, in the light of the other evidence, such testimony would be most probably untrue. In so far as the defendant Lindly is concerned, such testimony is unquestionably shown to be untrue by his proven confessions, which, in material particulars, as we will see shortly, were proven to be true. This application for continuance, even if in conformity with statutory requirements, presents, for the reasons stated, no merit when considered as part of the motion for new trial.
Serious complaint is made that the court permitted, over objections of defendants, the written testimony of Bob Carter, the alleged owner of the stolen animals, as deposed and reduced to writing at a previous examining trial of defendants for this same theft. As a predicate for its admission, the prosecution proved that said Bob Carter was at home, forty miles distant in another county, confined to his room, which he was and had been unable to leave for some months, on account of the effect of a serious attack of measles, which had destroyed the sight of one of his eyes and left him a chronic invalid, with constant pains in the head and palpitation of the heart.
Our statute makes provision for the admission of such testimony “when, by reason of bodily infirmity, such witness can not attend.” (Code Crim. Proc., art. 772.) The same rule applies as is provided for depositions in article 774 of the Code of Criminal Procedure. What is bodily infirmity? Mr. Webster defines “infirmity” “a disease,” “a malady,” “feebleness.” Mr. Bouvier says infirm means weak, feeble, and he remarks that “where a witness is infirm to an extent likely to destroy his life or to prevent his attendance at a trial his testimony de bene esse may be taken at any age.” (Bouvier’s Law Dic., infirm, de bene esse.)
Speaking of the circumstances which justify the use of the [150]*150testimony of an absent witness, Mr. Wharton says: “Sickness falls under the same rule. Thus, in an old case where a witness-on his journey to the place of trial was taken so ill that he was-unable to proceed, we find it recorded that his deposition was allowed to be read; and the same liberty would apply to depositions taken in a prior case between the same parties. At the-same time it must appear that the sickness is of a character imposing permanent inability” (1 Whart. Ev., 2 ed., sec. 179; 1 Greenl. Ev., section 163); that is, “when, from the nature of the illness or .other infirmity, no. reasonable hope remains that-the witness will be able to appear in court on any future occasion.” In his work on Criminal Evidence the same learned^ author says: “Whether the deposition of a sick or insane witness can be taken in a criminal case depends upon local statutes, but wherever the deposition has been duly taken in a preliminary procedure it can be received in subsequent proceedings against the same defendant, the witness being unobtainable.” (Whart. Crim. Ev., sec. 230.) This was the common law and is the general rule.
But our statute does not declare that the “infirmity” must be permanent. Under a modern statute, somewhat similar to ours, in England, it was said “there is nothing in the words of the statute which renders it necessary that the inability of the witness to attend at the trial should be permanent; it may, therefore, be implied that it may not be so. Before the statute, it seems to have been doubted whether a mere temporary illness (as with a woman about to be confined) was a sufficient ground for admitting the deposition. * , * * And there can be no doubt that a "judge would now exercise his discretion and decide whether in the interests of justice it were better to read the deposition or to adjourn the trial in order to obtain the oral testimony of the witness'.” (See note to section 230, Whart. Crim. Ev.) We think this is the correct doctrine applied-to the construction to be given -our statute in so far as it relates to-bodily infirmity. The facts as to the witness Bob Garter would show him to be in a condition of bodily infirmity by reason of which he was unable to attend, and the court did not err in permitting his testimony to be read.
When the prosecution proposed to introduce in evidence the confessions of the defendant Lindly, they were objected to by both defendants upon the ground that he, Lindly, was at the time in jail, and he had not been previously cautioned that they [151]*151might be used against him; and said confessions were also objected to by the defendant Collins because they were not admissible against him, he not having been present when they were made by Lindly. Lamaster, the city marshal of Honey Grove, who arrested defendants, swore that after he had put them in jail, he had a talk with Lindly in the absence of Collins, and Lindly said “that Collins took the horses in Hopkins county, Texas, on the night before, and tied the mare out all night, and came by for him next morning, leading the mare. That then Collins told him about having taken the mare, and told him (Lindly) to come and go with him, Collins, to Honey Grove, and that they would sell her, and they would have a bust on the money. * * That the mare and colt belonged to Bob Carter, of Hopkins county, near Fairlands, and that if he, witness, would write to the post master at Fairlands, he would send the letter to Carter, and that they would learn that the mare belonged to Carter. Witness stated that he wrote to Bob Carter, in care of the post master, about the mare, and in a few days he (Carter) came to Honey Grove in company with J. W. Cundiff, and went to the stable where the mare and colt had been placed by witness, and pointed them out and took them off with him.”
An exception to the rule that a confession made in arrest can not be used unless the party has first been cautioned that it may be used against him is where, “in connection with such confession, he makes statement of facts (or of circumstances that are found to be true, which conduce to establish his guilt.” (Code Crim. Proc., art. 750.) Such was the case in this instance. His statement as to who was the owner of the animals was found to be true, and the statement did conduce to establish his guilt. The confession was properly admissible under the circumstances as against the defendant Lindly. (Speights v. The State, 1 Texas Ct. App., 551; Walker v. The State, 9 Texas Ct. App., 38; Kennon v. The State, 11 Texas Ct. App., 356; Allison v. The State, 14 Texas Ct. App., 123; Weller v. The State, 16 Texas Ct. App., 201; Bean v. The State, 17 Texas Ct. App., 60; Collins v. The State, 20 Texas Ct. App., 400.)
But, whilst the confession was legitimate and admissible as against Lindly, it was inadmissible as to his co-defendant Collins, and the court so expressly charged the jury, and instructed them that they could not consider the confession as evidence against Collins. This is all that could be done where the parties were both on trial and the evidence- valid as to one and not so as [152]*152to the other. We find no error in the rulings connected with Lindly’s confession.
It will be noticed from the foregoing that the State put in evidence the confession of Lindly. In connection with this confession, the other testimony affirmatively shows that he never made any claim to or exercised any control over the horses, nor did he attempt to make sale of them. He was simply present with Collins, who was the claimant of and the active party endeavoring to sell them. How, if Lindly’s confession was true, then he had nothing to do with the original “taking,” or theft of the animals, and had no connection of any character with them until the next morning after their theft by Collins was complete. If he did not participate in the original taking, and took no part in its consummation, then he.was not guilty of theft, however criminal his subsequent conduct might be. He must have been present and participating in the theft, or doing something at the time of its perpetration in connection with its perpetration— which would show an “acting together” between himself and Collins in the accomplishment of the contemplated crime—before he could be considered a principal offender in the eye of the law. (Penal Code, art. 74; Smith v. The State, 21 Texas Ct. App., 108; Watson v. The State, Id., 598, and see a full discussion of the subject in 6 Crim. Law Mag., 350, and note.)
Occupying this attitude to the transaction, the court should have charged specially with reference to the facts, so that the jury might have been enabled to pass intelligently upon Lindly’s branch of the case. A special instruction upon the subject was asked by his counsel, and refused, and which, though not critically correct in itself, was sufficient to call the court’s attention to the necessity of a charge pertinent to that branch of the case. As given, the charge of the court was too general under the circumstances.
In so far- as the appellant Collins is concerned, we have found no error in the record demanding a reversal, and as to him, the judgment will be affirmed. For the defect in the charge of the court as to Lindly, which we have pointed out, and, moreover, because as to him the evidence, which was all State’s evidence, is not, to our minds, conclusive of his complicity in the theft of the animals, the judgment as to him will be reversed and the cause remanded for another trial.
Affirmed as to Collins, and reversed and remanded as to Lindly. Ordered accordingly.
[153]*153Opinion delivered October 29, 1887.