Winkler, J.
The appellant and five others, James A. Morris, S. L. Morris, Jasper Morris, W. M. McComas, and I. D. Marse by name,, were jointly indicted by the grand [602]*602jury of Hunt county, for the murder of a man described in the indictment as “one - Miller, a peddler,’’ whose Christian name, it is alleged, is to the grand jurors unknown, charged to have been" committed in the county of Hunt, on January 9, 1876.
In the judgment entry, under date of July 16, 1877, which it is stated was the day set for the trial, the court, on the motion of the defendants, granted a severance, and after the defendants had been arraigned and had pleaded not guilty, this appellant was put upon her separate trial. The trial, which was commenced on the 16th, continued through the intermediate days until July 21, 1877, when the jury returned a verdict against the accused of murder in the first degree, and assessed her punishment at confinement in the penitentiary during her natural life ; upon which verdict judgment was entered accordingly.
A motion for new trial was made, which being overruled by the court, the defendant excepted, and in open court-gave notice of appeal.
We have examined with the greatest possible care every feature of this strangely interesting case, as presented by the record, aided by the able written and oral arguments of counsel on both sides, in order that we might determine-understandingly the merits of this appeal, and have arrived at the conclusion that the most material, if not the only, subject for consideration, and which must be decisive of the case for the present, is as to the sufficiency of the charge of the court given to the jury on the trial below.
We propose, therefore, to consider the question of the sufficiency of the charge in the light of the evidence set out in the record, and, testing it by the established rules of law, determine whether or not the instructions given by the court were the law of the case as made by the proofs, and by which the jury were to be guided in determining the guilt or innocence of the defendant.
[603]*603It is conceded that if the principal state’s witness, W. J. Miller, is to be fully credited, a most atrocious murder was committed at the house of the accused on the night of January 10, 1876, and that the accused was there present, aiding by words and gestures those engaged in the perpetration of a most horrid crime, and with a full knowledge and understanding of their wicked intention.
But, withdrawing the mind from the contemplation of the heinousness of the offense, and looking at the whole case and the evidence of the other witnesses, the question forces itself upon us, Was not this state’s witness also a guilty participant in the commission of the crime?
This witness attempts to exculpate himself by saying that he was compelled, by threats against his own life, to take the part he did. Aside from this, there is as much evidence against him as there is against the accused herself. At any rate, the evidence, taken as a whole, was of such a character as to have required of the presiding judge a proper instruction to the jury on the subject of accomplices, and the weight to be given by the jury to the evidence of an accomplice, as an important part of the law applicable to the case as made by the evidence. The failure of the judge so to charge was a material error, necessarily to the prejudice of the accused.
In every criminal case it is the duty of the judge who presides at the trial to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case ; and in cases of felony it is made the duty of the judge to give this charge whether asked so to do or not. Code Cr. Proc., Art. 594 (Pasc. Dig., Art. 3059).
The whole charge is to .be taken together and construed with reference to the facts. Johnson v. The State, 27 Texas, 706.
The expression employed in the Code, to wit, “the law applicable to the case,” has uniformly been construed to [604]*604mean the case as made by the evidence. Hudson v. The State, 40 Texas, 15; Holden v. The State, 1 Texas Ct. of App. 235.
Treating of the subject as to common law, a standard author says: “By the common law the rule seems to be, ' the degree of credit which ought to be given to the testimony of an accomplice is matter exclusively within the province of the jury.’ It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence ; and without doubt great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But, on the other hand, judges in their discretion will advise the jury not to convict of felony upon the testimony of an accomplice alone and without corroboration ; and it is now. so generally the practice to give them such advice that its omission would be regarded as an omission of duty on the part of the judge ; and, considering the respect always paid by the jury to this advice given from the bench, it may be regarded as the settled course of practice not to convict a person in case of felony upon the sole and uncorroborated testimony of an accomplice. The judges do not in such case withdraw the cause from the jury by positive direction to acquit, but only advise them not to give credit to the testimony.” 1 Greenl. on Ev., sec. 380.
If, then, it would be regarded as an omission of duty on the part of the judge not to advise the jury in a case of felony that they should not convict on the testimony of an accomplice without corroboration, when, according to the learned author, there was no such rule of law, but only regarded as settled practice, with how much greater force the omission would apply when, as under the provisions of our Code, it is expressly provided that “ a conviction can[605]*605not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Pasc. Dig., Art. 3118.
The corroboration must be as to a material matter. Bruton v. The State, 21 Texas, 337.
The Penal Code, Article 219 (Pasc. Dig., Art. 1814), defines who are accomplices in a technical sense, but this is not the criterion by which to determine whether one is an accomplice in the sense of requiring corroboration of his testimony to convict.
The provisions of Article 653 of the Code of Criminal Procedure, requiring corroboration to convict, apply, not only to those persons mentioned in Article 1814, who are technically accomplices, but applies as well to particepes criminis, principal and joint offenders, and accessories. All persons who have participated in the commission of a crime, whether principal offenders, or more remotely connected with the commission of the particular offense in which such person’s testimony may be offered, come within the rule requiring corroboration to justify a conviction. Barrara v. The State, 42 Texas, 260; Williams and Smith v. The State, 42 Texas, 322: Irwin v. The State, 1 Texas Ct. of App. 301, and cases there cited.
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Winkler, J.
The appellant and five others, James A. Morris, S. L. Morris, Jasper Morris, W. M. McComas, and I. D. Marse by name,, were jointly indicted by the grand [602]*602jury of Hunt county, for the murder of a man described in the indictment as “one - Miller, a peddler,’’ whose Christian name, it is alleged, is to the grand jurors unknown, charged to have been" committed in the county of Hunt, on January 9, 1876.
In the judgment entry, under date of July 16, 1877, which it is stated was the day set for the trial, the court, on the motion of the defendants, granted a severance, and after the defendants had been arraigned and had pleaded not guilty, this appellant was put upon her separate trial. The trial, which was commenced on the 16th, continued through the intermediate days until July 21, 1877, when the jury returned a verdict against the accused of murder in the first degree, and assessed her punishment at confinement in the penitentiary during her natural life ; upon which verdict judgment was entered accordingly.
A motion for new trial was made, which being overruled by the court, the defendant excepted, and in open court-gave notice of appeal.
We have examined with the greatest possible care every feature of this strangely interesting case, as presented by the record, aided by the able written and oral arguments of counsel on both sides, in order that we might determine-understandingly the merits of this appeal, and have arrived at the conclusion that the most material, if not the only, subject for consideration, and which must be decisive of the case for the present, is as to the sufficiency of the charge of the court given to the jury on the trial below.
We propose, therefore, to consider the question of the sufficiency of the charge in the light of the evidence set out in the record, and, testing it by the established rules of law, determine whether or not the instructions given by the court were the law of the case as made by the proofs, and by which the jury were to be guided in determining the guilt or innocence of the defendant.
[603]*603It is conceded that if the principal state’s witness, W. J. Miller, is to be fully credited, a most atrocious murder was committed at the house of the accused on the night of January 10, 1876, and that the accused was there present, aiding by words and gestures those engaged in the perpetration of a most horrid crime, and with a full knowledge and understanding of their wicked intention.
But, withdrawing the mind from the contemplation of the heinousness of the offense, and looking at the whole case and the evidence of the other witnesses, the question forces itself upon us, Was not this state’s witness also a guilty participant in the commission of the crime?
This witness attempts to exculpate himself by saying that he was compelled, by threats against his own life, to take the part he did. Aside from this, there is as much evidence against him as there is against the accused herself. At any rate, the evidence, taken as a whole, was of such a character as to have required of the presiding judge a proper instruction to the jury on the subject of accomplices, and the weight to be given by the jury to the evidence of an accomplice, as an important part of the law applicable to the case as made by the evidence. The failure of the judge so to charge was a material error, necessarily to the prejudice of the accused.
In every criminal case it is the duty of the judge who presides at the trial to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case ; and in cases of felony it is made the duty of the judge to give this charge whether asked so to do or not. Code Cr. Proc., Art. 594 (Pasc. Dig., Art. 3059).
The whole charge is to .be taken together and construed with reference to the facts. Johnson v. The State, 27 Texas, 706.
The expression employed in the Code, to wit, “the law applicable to the case,” has uniformly been construed to [604]*604mean the case as made by the evidence. Hudson v. The State, 40 Texas, 15; Holden v. The State, 1 Texas Ct. of App. 235.
Treating of the subject as to common law, a standard author says: “By the common law the rule seems to be, ' the degree of credit which ought to be given to the testimony of an accomplice is matter exclusively within the province of the jury.’ It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence ; and without doubt great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But, on the other hand, judges in their discretion will advise the jury not to convict of felony upon the testimony of an accomplice alone and without corroboration ; and it is now. so generally the practice to give them such advice that its omission would be regarded as an omission of duty on the part of the judge ; and, considering the respect always paid by the jury to this advice given from the bench, it may be regarded as the settled course of practice not to convict a person in case of felony upon the sole and uncorroborated testimony of an accomplice. The judges do not in such case withdraw the cause from the jury by positive direction to acquit, but only advise them not to give credit to the testimony.” 1 Greenl. on Ev., sec. 380.
If, then, it would be regarded as an omission of duty on the part of the judge not to advise the jury in a case of felony that they should not convict on the testimony of an accomplice without corroboration, when, according to the learned author, there was no such rule of law, but only regarded as settled practice, with how much greater force the omission would apply when, as under the provisions of our Code, it is expressly provided that “ a conviction can[605]*605not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Pasc. Dig., Art. 3118.
The corroboration must be as to a material matter. Bruton v. The State, 21 Texas, 337.
The Penal Code, Article 219 (Pasc. Dig., Art. 1814), defines who are accomplices in a technical sense, but this is not the criterion by which to determine whether one is an accomplice in the sense of requiring corroboration of his testimony to convict.
The provisions of Article 653 of the Code of Criminal Procedure, requiring corroboration to convict, apply, not only to those persons mentioned in Article 1814, who are technically accomplices, but applies as well to particepes criminis, principal and joint offenders, and accessories. All persons who have participated in the commission of a crime, whether principal offenders, or more remotely connected with the commission of the particular offense in which such person’s testimony may be offered, come within the rule requiring corroboration to justify a conviction. Barrara v. The State, 42 Texas, 260; Williams and Smith v. The State, 42 Texas, 322: Irwin v. The State, 1 Texas Ct. of App. 301, and cases there cited.
The authorities cited above clearly establish these legal propositions:
1st. That, in so far as the question of evidence is concerned, all persons are accomplices, upon whose uncorroborated evidence a conviction cannot be sustained, when they stand in the relation of principal offenders, as defined in Articles 214-218 of the Penal Code (Pasc. Dig., Arts. 1809 to 1813, inclusive), or where they stand in the technical relation of accessories, as defined in Article 219 and the other [606]*606Articles of the Code embraced in chapter 2, commencing with Article 2814 of Paschal’s Digest.
2d. That, to justify a conviction of crime on the testimony of an accomplice as above defined, such testimony must be corroborated by other evidence, not only of the fact that the crime charged has been committed, but the corroborating evidence must tend to connect the defendant with the commission of the offense.
It is a settled rule of law that no conviction can be obtained on the testimony of an accomplice alone, when his evidence is not corroborated by other testimony showing that the accused was engaged in the transaction which forms the subject-matter of the charge under investigation. Wright v. The State, 43 Texas, 170.
The evidence set out in the transcript was of such a character as, in our opinion, to have suggested, not only the propriety, but the necessity, of directing the attention of the jury specially to this view of the case ; and the failure on the part of the judge to so charge must be regarded as a failure to charge the law of the case, well calculated to prejudice the rights of the defendant.
On the trial evidence was admitted, over objections of the defendant’s counsel, as to certain confessions or statements made by the defendant during her confinement in jail, and like statements and certain data furnished by another defendant whilst in custody of the sheriff; which was objected to by counsel for the defendant, on the ground that the testimony was not permissible owing to the situation in which, the parties making the admissions or confessions were placed at the time the disclosures were made; and to the ruling of the court on the subject bills of exceptions were taken.
The question of the admissibility of this evidence must depend upon the law as laid down in the Code on the sub[607]*607ject of admissions, subject to the rules requiring corroboration of testimony coming from accomplices.
“ At common law,” says Mr. Greenleaf, “ it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in law. Their value depends on the supposition that they are deliberate and voluntary, and on presumption that a rational being will not make admissions prejudicial to his interest and safety unless they were prompted by truth and conscience. Such confessions, so made by a prisoner to any person, at any moment of time, at any place, subsequent to the perpetration of the crime, and previous to his examination before the magistrate, arc at common law received in evidence as among the proofs of guilt.” 1 Greenl. on Ev., sec. 215.
But this quotation from the text is preceded by another equally important to be observed, as follows: “But here, also, as we"have before remarked in regard to admissions, the evidence of verbal confessions of guilt is to be received with great caution. For, besides the danger of mistake from misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession. The zeal, too, which so generally prevails to detect offenders, especially in cases of aggravated guilt, and a strong disposition in the persons engaged in the pursuit of evidence to rely on slight grounds of suspicion, which are exaggerated into sufficient proof, together with the character of persons necessarily called as witnesses in cases of secret and atrocious crimes, all tend to impair the value of this kind of evidence, and sometimes lead to its rejection when in civil actions it would have been received.” 1 Greenl. on Ev. 214.
These common-law rules have been modified by our Code [608]*608in some important respects. The general rule of the Code-is this : The confession of a defendant may be used in evidence against him if it appear that the same was freely made, without compulsion or persuasion, under the following rules, to wit: the confession shall not be used if at the time it was made the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him; or unless, in connection with such confession, he make statements of facts or of circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or instruments with which he states the offense was committed. Arts. 661, 662, Code Cr. Proc. (Pasc. Dig., Arts. 3126, 3127).
It appearing from the record that the confession or admission said to have been made by the defendant was made whilst she was confined in.jail, and that that of an alleged particeps criminis was made whilst he was in the custody of the sheriff, and neither having been made in a voluntary statement before an examining court, they could only be admitted under one of the other two circumstances named with regard to statements made by one in jail or in custody of an officer, to wit: 1st, that the statement attempted to-be proved had been voluntarily made after the person making it had been first cautioned that it might be used against him; or, 2d, that it appeared in connection with such confession that the party making it made statement of facts or circumstances that are found to be true, which conduce to establish the guilt of the accused.
It is not made to appear that the statements of the defendant then on trial, or those of the man Marse, the one in jail and the other in custody of the sheriff, were made volun[609]*609tarily after the parties had been first cautioned that the statement might be used against them, or that they had been so cautioned at all; and, therefore, the statements did not come within the first qualification as set out above, and were not admissible on that ground.
We are of opinion, however, that the statements of both Mrs. Davis and Marse, and the actions of Marse, and which were found to be true, did conduce remotely to connect this defendant with the commission of the offense charged, and on this ground the court did not err in- permitting the testimony to go to the jury for what it was worth.
It must, however, be borne in mind that the statements of the defendant were proved, in part at least, by the state’s witness Miller, heretofore mentioned in connection with the subjects of accomplices, and the evidence furnished by the statements and acts of Marse originated. with one jointly indicted with the defendant; so, on a subsequent trial, if the evidence shall require an instruction to the jury on the subject'of accomplices, such instruction should also embrace the subject of these statements or confessions, if the evidence should be as on this trial. The question of the admissibility of the evidence was for the court. The effect of the evidence, like all questions as to the effect of evidence, was for the consideration of the jury, taken , in connection with the other facts and, circumstances in evidence,' and under proper instructions by the court.
It is not attempted to consider the evidence as to its sufficiency to support the finding of the jury, for the reason that the case must be remanded for a new trial on account of the failure of the judge to properly instruct the jury as to the law governing the subject of evidence by accomplices.
We may be permitted, however, to say that, aside from the evidence of the state’s witness Miller, there is not sufficient evidence to sustain the verdict. It was error in the [610]*610court to exclude the testimony of the witness called to support the credit of Mrs. Miller, whose testimony, it seems, was attacked on the trial, as shown by a bill of exceptions. The error was, however, rendered in a great measure immaterial by the admission by the county attorney that the witness was credible. Other questions presented by the record have not been considered, for the reason that they are not likely to occur on another trial.
For the want of a proper charge on the subject of the testimony of accomplices, the judgment must be reversed and the cause remanded.
Reversed and remanded.