Willson, Judge.
Defendant appeals from a third conviction of murder in the second degree, the two former convictions having been set aside upon appeals to this court. (8 Texas Ct. App., 585; 9 Texas Ct. App., 419.) As the case is now presented there are but few questions necessary to be considered.
1. We think there was no error in overruling defendant’s application for a continuance. Such of the facts as were material, which defendant alleged he expected to prove by the absent witness, are shown by the evidence to have been within the knowledge of other accessible witnesses, and it does not appear at all probable that any injury resulted, or could have resulted, to the defendant by the refusal of the court to grant him a continuance.
2. We find in the record the following bill of exceptions: “Be it remembered that on the trial of the above styled cause, and after the State and defendant had closed their evidence, and the opening arguments for both State and defendant had been made, the State, through her district attorney, asked leave to recall the witness Henry Shane, and to prove the acts of defendant when brought back to the spot where the homicide was committed; to which proceeding the defendant, by counsel, objected, and said objection being overruled by the court, said witness was recalled, and was asked by the district attorney what was said to defendant after he was brought back to said spot where the murder was committed. Witness replied that he asked the defendant what had been done with the body, to which defendant replied by pointing to the hill where the dead body of deceased had been previously found. Defendant was under arrest at the time, and had been for two or three days previously. Said defendant and Swift had been handcuffed together, and part of the time tied with a rope. Witness had talked with defendant about the murder of deceased, and' defendant was informed of what he was under arrest for. Defendant was not cautioned that his admissions might be used against him. To all of which proceedings, and to the testimony of said recalled witness, defendant, by counsel, excepted,” etc.
It was within the discretion of the court to admit further testimony necessary to a due administration of justice, at any time before the argument of the cause was concluded, and the exercise of such discretion will not be revised by this court unless it [480]*480plainly appears to have been abused. (Code Crim. Proc., Art. 661; Kemp v. The State, 38 Texas, 110; Bittick v. The State, 40 Texas, 117; Goins v. The State, 41 Texas, 334; Moore v. The State, 7 Texas Ct. App., 14; Hewitt v. The State, 10 Texas Ct. App., 501; Cook v. The State, 11 Texas Ct. App., 19; George v. The State, Id., 95; Bostick v. The State, Id., 126; Grosse v. The State, Id., 364; Donahoe v. The State, 12 Texas Ct. App., 297.)
But the question remains, was this evidence admissible at any time? It is very clear that under the circumstances, if the defendant had confessed his guilt, such confession would not have been admissible against him. It was so determined by this court on a former appeal of this case. (Nolen v. The State, 8 Texas Ct. App., 585.) But does the rule which excludes confessions which are not brought within the exceptions of the statute (Code Crim. Proc., Art. 750), also apply to and exclude the acts of the defendant done under the same circumstances? This is the question directly presented by the defendant’s bill of exception, and is one upon which we find some conflict of opinion. It was the opinion of the learned judge who tried this case, that, while the statements or confessions of defendant made while under arrest were not admissible against him, yet the acts performed by him were admissible; and, holding this view, he allowed the prosecution to introduce the evidence objected to by defendant, and set forth in the bill of exception we have quoted. This opinion of the learned judge was no doubt based upon the opinion of this court in Rhodes v. The State, 11 Texas Court of Appeals, 563, where it is said: “A distinction has always been made between acts performed and confessions made by a defendant while under arrest. The former are admitted, whilst the latter are not, unless coming strictly within the letter of the statute.” In this Rhodes case the defendant was charged with the theft of money and was under arrest, and, while under arrest, she was taken to the house where the stolen money was supposed to be concealed, and there she pulled up a plank in the floor of the house and looked under the floor as if she was looking for the money, but produced nothing. These acts of the defendant were proved by the State over the objections of defendant, and this court held that such evidence was admissible. In support of the doctrine announced in that case the court, in its opinion, cites Elizabeth v. The State, 27 Texas, 329; Walker v. The State, 7 Texas Court of Appeals, 245; and Preston v. The State, 8 [481]*481Texas Court of Appeals, 30; and the first named case is especially referred to as a case in point.
That case, Elizabeth v. The State, was a trial for the murder of a child. While the defendant was under arrest she told her guard that she could show the dead body of the child, which at that time had not been discovered; she then walked up a ravine which was close by, and walked into a hole of water, saying that the child was in there, and brought out the dead body of the child. It was held, over the objections of the defendant, that the prosecution might prove the above stated facts. We have no doubt of the correctness of that ruling. We think such testimony was strictly within one of the exceptions of the statute, because it was in consequence of the defendant’s acts that the dead body of the murdered child was discovered, and it was upon this ground that the Supreme Court held it to be admissible. ■
Upon a careful examination and thoughtful consideration of the Elizabeth case, we are of the opinion that it does not support the opinion of this court in the Rhodes case. There is a marked and very material distinction in the two cases. In the Elizabeth case the acts performed by the defendant led to the discovery of the dead body of the child. In the Rhodes case the acts performed by the defendant did not lead to the discovery of the stolen money. We will refer to this distinction more fully in a subsequent portion of this opinion.
Walker v. The State, cited as supporting the Rhodes decision, is, we think, essentially different from the Rhodes case, and does not support it. While under arrest upon a charge of murder, and during an examining trial upon the charge before a justice of the peace, the defendant Walker was caused by the magistrate to make tracks in the ashes and sand, and a measure was applied to these tracks which fitted exactly, and this measure was of tracks found at the place of the murder. These facts were proved over the objections of defendant upon his trial after indictment; to which he objected, and upon appeal, this court held the evidence was admissible, quoting at length from the opinion in The State v. Graham, 74 N. C., 646, where the identical question was presented and determined, and a portion of which opinion we here quote: “The object of all evidence is to elicit the truth.
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Willson, Judge.
Defendant appeals from a third conviction of murder in the second degree, the two former convictions having been set aside upon appeals to this court. (8 Texas Ct. App., 585; 9 Texas Ct. App., 419.) As the case is now presented there are but few questions necessary to be considered.
1. We think there was no error in overruling defendant’s application for a continuance. Such of the facts as were material, which defendant alleged he expected to prove by the absent witness, are shown by the evidence to have been within the knowledge of other accessible witnesses, and it does not appear at all probable that any injury resulted, or could have resulted, to the defendant by the refusal of the court to grant him a continuance.
2. We find in the record the following bill of exceptions: “Be it remembered that on the trial of the above styled cause, and after the State and defendant had closed their evidence, and the opening arguments for both State and defendant had been made, the State, through her district attorney, asked leave to recall the witness Henry Shane, and to prove the acts of defendant when brought back to the spot where the homicide was committed; to which proceeding the defendant, by counsel, objected, and said objection being overruled by the court, said witness was recalled, and was asked by the district attorney what was said to defendant after he was brought back to said spot where the murder was committed. Witness replied that he asked the defendant what had been done with the body, to which defendant replied by pointing to the hill where the dead body of deceased had been previously found. Defendant was under arrest at the time, and had been for two or three days previously. Said defendant and Swift had been handcuffed together, and part of the time tied with a rope. Witness had talked with defendant about the murder of deceased, and' defendant was informed of what he was under arrest for. Defendant was not cautioned that his admissions might be used against him. To all of which proceedings, and to the testimony of said recalled witness, defendant, by counsel, excepted,” etc.
It was within the discretion of the court to admit further testimony necessary to a due administration of justice, at any time before the argument of the cause was concluded, and the exercise of such discretion will not be revised by this court unless it [480]*480plainly appears to have been abused. (Code Crim. Proc., Art. 661; Kemp v. The State, 38 Texas, 110; Bittick v. The State, 40 Texas, 117; Goins v. The State, 41 Texas, 334; Moore v. The State, 7 Texas Ct. App., 14; Hewitt v. The State, 10 Texas Ct. App., 501; Cook v. The State, 11 Texas Ct. App., 19; George v. The State, Id., 95; Bostick v. The State, Id., 126; Grosse v. The State, Id., 364; Donahoe v. The State, 12 Texas Ct. App., 297.)
But the question remains, was this evidence admissible at any time? It is very clear that under the circumstances, if the defendant had confessed his guilt, such confession would not have been admissible against him. It was so determined by this court on a former appeal of this case. (Nolen v. The State, 8 Texas Ct. App., 585.) But does the rule which excludes confessions which are not brought within the exceptions of the statute (Code Crim. Proc., Art. 750), also apply to and exclude the acts of the defendant done under the same circumstances? This is the question directly presented by the defendant’s bill of exception, and is one upon which we find some conflict of opinion. It was the opinion of the learned judge who tried this case, that, while the statements or confessions of defendant made while under arrest were not admissible against him, yet the acts performed by him were admissible; and, holding this view, he allowed the prosecution to introduce the evidence objected to by defendant, and set forth in the bill of exception we have quoted. This opinion of the learned judge was no doubt based upon the opinion of this court in Rhodes v. The State, 11 Texas Court of Appeals, 563, where it is said: “A distinction has always been made between acts performed and confessions made by a defendant while under arrest. The former are admitted, whilst the latter are not, unless coming strictly within the letter of the statute.” In this Rhodes case the defendant was charged with the theft of money and was under arrest, and, while under arrest, she was taken to the house where the stolen money was supposed to be concealed, and there she pulled up a plank in the floor of the house and looked under the floor as if she was looking for the money, but produced nothing. These acts of the defendant were proved by the State over the objections of defendant, and this court held that such evidence was admissible. In support of the doctrine announced in that case the court, in its opinion, cites Elizabeth v. The State, 27 Texas, 329; Walker v. The State, 7 Texas Court of Appeals, 245; and Preston v. The State, 8 [481]*481Texas Court of Appeals, 30; and the first named case is especially referred to as a case in point.
That case, Elizabeth v. The State, was a trial for the murder of a child. While the defendant was under arrest she told her guard that she could show the dead body of the child, which at that time had not been discovered; she then walked up a ravine which was close by, and walked into a hole of water, saying that the child was in there, and brought out the dead body of the child. It was held, over the objections of the defendant, that the prosecution might prove the above stated facts. We have no doubt of the correctness of that ruling. We think such testimony was strictly within one of the exceptions of the statute, because it was in consequence of the defendant’s acts that the dead body of the murdered child was discovered, and it was upon this ground that the Supreme Court held it to be admissible. ■
Upon a careful examination and thoughtful consideration of the Elizabeth case, we are of the opinion that it does not support the opinion of this court in the Rhodes case. There is a marked and very material distinction in the two cases. In the Elizabeth case the acts performed by the defendant led to the discovery of the dead body of the child. In the Rhodes case the acts performed by the defendant did not lead to the discovery of the stolen money. We will refer to this distinction more fully in a subsequent portion of this opinion.
Walker v. The State, cited as supporting the Rhodes decision, is, we think, essentially different from the Rhodes case, and does not support it. While under arrest upon a charge of murder, and during an examining trial upon the charge before a justice of the peace, the defendant Walker was caused by the magistrate to make tracks in the ashes and sand, and a measure was applied to these tracks which fitted exactly, and this measure was of tracks found at the place of the murder. These facts were proved over the objections of defendant upon his trial after indictment; to which he objected, and upon appeal, this court held the evidence was admissible, quoting at length from the opinion in The State v. Graham, 74 N. C., 646, where the identical question was presented and determined, and a portion of which opinion we here quote: “The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made, or in the hope of escaping punishment if they are made, [482]*482are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. ISTo fears or hopes of the prisoner could produce the resemblance of his track. This resemblance was a fact calculated to aid the jury, and fit for their consideration.”
It will be perceived from the foregoing extract that the admissibility of the testimony as to the tracks was founded upon the reason that no hopes or fears of the prisoner could produce a resemblance of his tracks, while confessions are excluded because experience shows they are liable to be influenced by such motives, and are therefore not always truthful.
In the Preston case (supra) we find nothing in support of the broad doctrine laid down in the Rhodes case, that the acts of the defendant are never to be treated as confessions so as to render them inadmissible in evidence, but that such acts are admissible under circumstances which would exclude confessions. We have found no authority which in our judgment upholds the doctrine of the Rhodes case to the extent that it seems to reach.
Mr. Wharton says that “confessions may be by acts as well as words” (Whart. Cr. Ev., sec. 683); and even silence, under certain circumstances, is taken as a confession. (Id., sec. 679.) Suppose a prisoner charged with murder is asked the question “Are you guilty of murder?” and instead of saying “I am” he makes an affirmative movement of his head. Would this movement of the head be admissible evidence, while his confession by words would be inadmissible? Suppose he were told, “You murdered the deceased; you crushed in his head with an axe; you dragged him into yonder thicket and left him, after having robbed him,” and in response to this charge the prisoner had not uttered a word, but had nodded his head in assent to the truth of the same; will it be contended that the act of nodding his head, because it is an act and not a statement or declaration, is competent evidence against him, when if he had confessed the charge by words such confession would have been excluded? We are unable to perceive the reason of the rule which admits the acts while it excludes the words. Acts, it is said, speak louder than words, and this being generally true, they should be regarded as confessions, as much so as words, and the law does so regard them. Acts are but a kind of language, expressing the emotions and thoughts of the person performing them, more [483]*483forcibly and convincing sometimes than words, but still, like words, only a medium through which the inward feelings, thoughts or intents of the person are outwardly indicated.
In the case before us, the prisoner pointed in the direction of where the body of deceased had been found, when asked what they had done with deceased. Instead of this response to the question, suppose he had said: “We left the dead body of deceased on yonder hillside.” Would this answer have been admissible? We think not under the long line of decisions in this State. How, then, can it be said that his gesture is competent evidence? Upon what principle is this distinction founded? Can a confession be indirectly admissible which would not be directly so? Would not such a construction of the law defeat its purposes? Would it not probably lead to great evils? Under such a rule, extorted confessions of guilt, made by nods, winks, gestures, and other acts would be frequently paraded in cases to supply the absence of sufficient evidence to establish the guilt of the accused. Such evidence would be easily attainable in most cases, and would be as unreliable and objectionable in every respect as confessions by words. As said by Roscoe and Greenleaf: “The influence which might produce a groundless confession might also produce groundless conduct.” (Rose. Or. Ev., 51; 1 Greenl. Ev., sec. 232.) In this case, for illustration, the same influences which might have prompted the defendant to confess by words that he had committed the murder might have also prompted him to point in the direction of where the dead body of the murdered man had been found. Both the above quoted standard authors lay down the rule that the acts of the prisoner are in such cases placed upon the same plane with his words, and where the one is inadmissible so also is the other.
We are of the opinion that the rule announced in the Rhodes case is in conflict with the authorities and with the reasons which support the law governing the admissibility of confessions, and we must therefore overrule that case upon this subject.
3. Another serious question here presents itself. It appears that the defendant pointed in the direction of where the body of the deceased had been found. It was not in consequence of anything said or done by the defendant that the dead body was dis- ■ covered, or that any fact connected with the homicide was discovered. A confession is admissible against a defendant [484]*484when he makes 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 instrument with which he states the offense was committed. (Code Crim. Proc., Art. 750.) Does this mean facts or circumstances which have, prior to and independent of the confession, been found to be true, or is it confined to such facts or circumstances as are, in consequence of and by means of the information afforded by the confession, found to be true?
Upon this question we find the authorities uniform. Mr. Green-leaf states the rule in the following language: “Where, in consequence of the information obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact is discovered, it is competent to show that such discovery was made conformably to the information given by the prisoner.” (1 Greenl. Ev., sec. 231.) Mr. Phillips states the rule in substantially the same words. (1 Phil. Ev., 554.) Mr. Roscoe says: “Although a confession obtained by means of promises or threats cannot be received, yet, if in consequence of that confession certain facts tending to establish the guilt of the prisoner are made known, evidence of those facts may be received.” (Rosc. Cr. Ev., 50.) Mr. Bishop announces the same doctrine. (1 Bish. Cr. Proc., sec. 1242.) Mr. Wharton says: “ Although confessions made by threats or promises are not evidence, yet if they are attended by extraneous facts which show that they are true, any such facts which may be thus developed, and which go to prove the existence of the crime of which the defendant was suspected, will be received as testimony; e. g. where the party thus confessing points out or tells where the stolen property is, or where he states where the deceased was buried, or gives a clue to other evidence which proves the case. But if, in consequence of the confession of the prisoner thus improperly drawn out, the search for the property or person in question proves ineffectual, no proof of confession or search will be received.” (Whart. Cr. Ev., sec. 678.)
We believe it will be found upon examination that the decisions of the courts of this State have uniformly been in accord with the rule as stated by the elementary authors we have.cited. We have found no case in which a contrary doctrine, has been adopted. In Massey v. The State, 10 Texas Court of Appeals, 645, this court said: “Confessions made under arrest, unless vol[485]*485untary and after warning, may be used to the extent that the party made statement of facts and circumstances found to be true, and no further. Beyond the facts stated, and as far as they furnish information, other portions of the confession would not be admissible.” In Davis v. The State, 8 Texas Court of Appeals, 510, the doctrine we have quoted from the text books is fully and plainly approved and adopted.
We hold it to be settled, then, that the statement of facts or circumstances which are already known to exist, and which statement does not lead to any information connecting or tending to connect the defendant with the crime, will not be admissible in evidence against the defendant, if made while under arrest, unless it is made admissible under some other exception in the statute.
Applying the rules we have discussed to the evidence of defendant’s act in pointing in the direction of where the body of deceased had been previously found, we are of the opinion that it was not competent evidence, because it was a confession by act of a knowledge of facts, which knowledge tended to connect defendant with the murder, and was made while he was under arrest, without his being first cautioned that it might be used against him, and without being accompanied by a statement of any fact or circumstance found to be true which conduced to establish his guilt. While the learned judge who tried the case was fully authorized by the opinion of this court in the Rhodes •case in admitting this evidence, we must now hold this court was mistaken in the rule laid down in that case, and that the admission of the testimony was error, for which the judgment must be reversed.
4. But, even if this evidence had been competent, we do not think we could have approved the verdict and judgment upon the evidence as presented in the statement of facts. While the circumstances pointing to the defendant’s guilt are cogent, and render it quite probable that he participated in the murder, they do not impress us with that force and conclusiveness which should produce upon the mind a moral certainty of his guilt, to the exclusion of every other reasonable hypothesis. These same circumstances point to the man Danzer even more directly and more strongly as the murderer, than they do to this defendant. But it is not necessary or perhaps altogether proper that we .should discuss the evidence. Upon another trial of the case, the [486]*486prosecution may be able to adduce testimony more satisfactory, and amply sufficient to support a conviction.
Because the court erred in admitting the evidence complained of in defendant’s bill of exception hereinbefore quoted, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 23, 1883,