DAVIDSON, P. J.
Appellant was given the death penalty under a charge of murder for the killing of John Cain, a police oliicer of the city of Houston.
[208] The state’s case may be substantially stated as follows: Cain was a policeman on duty in his allotted beat on the night of the homicide. About 3:30, or a few minutes later, in the early morning, a policeman was heard to exclaim, “Stop! I am an officer;” and almost immediately a shot was fired. One or two policemen, hearing the exclamation and shot, went to the scene, and found deceased, one of them testified, “shot ■ through and through.” He was shot in the front, the ball emerging from the bach. His statement at the time was that he was shot by a negro whom he described as being yellow and wearing a mustache. The district attorney introduced a confession taken by himself from the defendant while a prisoner under burglary convictions in the penitentiary at Huntsville. It seems the district attorney went to Huntsville in company with two or three of the constabulary or policemen of Houston, and talked with the defendant twice, leaving him with the statement that if he wanted to talk with him later he could send for him. Some time later he did send for him, as testified by the district attorney, and made a statement to him in writing. Pie says the statement was voluntarily made after due caution. There was no one present at the time except he and the defendant. Shortly after this statement was made he and appellant went to another part of the penitentiary building, and the parties whom he had taken with him from Houston and three others witnessed the statement. Two of them were police officers, and under the statute would not be recognized as attesting witnesses. Neither would the policemen from Houston be so recognized. Mr. Teague stated- he was warden of the penitentiary and witnessed it, and Mr. Binford, it seems, would hardly be classed in the category of peace officers. They testified they would not sign as attesting witnesses until it had been read over to the defendant, who had previously signed it only in the presence of the district attorney. It was then read in their presence to defendant and attested by them. It does not show when read in their presence it was explained to defendant, but they say it was read to him in their presence. In that statement appellant is made to use the following language, as directly pertinent to the issues: .
“About August 1, 1911, I caught a freight train to Conroe and stayed up there a couple of days at a negro friend of mine named Collins. A preacher named Johnson saw me there during that time. I carried a grip from Houston with me, and bought another one at a road camp, where I stopped for a day. When I left camp I went up in the town of Conroe and stayed around there until train time, and then caught the train for Houston. I had the two grips with me, and I had a pistol in my pocket. I saw the negro porter on the train, whom I knew, but I. do not remember his name. When the train was into Houston in the Fifth ward, I got my grips and when the train stopped for the Ea Porte tracks just before they got to Buffalo bayou I got off and started back toward Nance street. I was going along the track when I saw a police officer, and I stopped in the shadow of a building until I thought he was gone, and then I started- on again, and when I got a little farther I saw the officer coming toward the track along Nance street so that I would have just about met him. I was carrying both grips in my left hand, as my right hand is crippled, and was at that- time, so I switched the two grips quickly to my right hand and pulled my pistol with my left out of my left hip pocket, and began running as fast as I could north right in the center of the tracks. The officer called to me twice to stop, and I saw that he had liis gun in his hand, so as I ran I turned and fired at him once. My gun was a double-action gun, but I cocked it before I fired. I saw him fall to the ground just after I fired, and I knew I had hit him, as I heard him say something about being shot, but I do not remember his exact words. I did not stop, but kept running as hard as I could.”
This is just an excerpt from, the confession, and is quoted simply because it bears directly upon the tragedy at the time it occurred. Appellant took the stand, and said with reference to the confession that the first two times they asked Mm to make a confession or tell about it he denied knowing anything about it. He denied having anything to do with the killing, or his presence at the time and place, and the reason that he finally, on the third conversation, made the confession was because the district attorney had informed him of his official capacity, and that he had power to do with him pretty much as he pleased, and that if he would make the confession he would see that it would go easy with him, which he understood meant he was only to be sent to the penitentiary, and as he was already in the penitentiary for 58 years on cumulative sentences for burglary, it would not amount to any serious matter. In other words, he testified that his confession was false, and that he made it under the promises of the district attorney, excluding the idea that he would be hanged, which the district attorney and some of the officers said would occur if he did not make the confession. Without quoting at any length, tins is the sum and substance of his testimony on that particular line.
This confession seems to have been thought necessary for the state; otherwise this trip to Huntsville by these officers and the means of securing the confession would not have been pursued. The police officer had not identified the defendant except by a description to the effect that he was a yellow negro with a mustache, and, as the writer recollects the record, this is not undertaken to be verified by any evidence other than the statement of the policemen, and all this occurred about 3:30 or 3:40 o’clock in the morning. The state introduced another witness, who testified, substantially, that he saw a party get off the train at the crossing of the La Porte road with a couple of grips in his hand and start up the railway walking. One or more of the train officers or crew testified that a negro got on at Conroe with a couple of grips and got off at the La Porte road [209] crossing. So the substantially and; concrete result of the state’s testimony was intended to show that appellant had been to Montgomery county two or three days and had returned to Houston, where he lived and had married. The proof shows he lived in Houston Heights. He got off the train at the point designated, and started waiting hack up the track with the grips in his hand when the police officer hailed him, and he ran, pursued by the policeman with a pistol in his hand, and defendant, after running a while, turned and fired one shot and continued running.
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DAVIDSON, P. J.
Appellant was given the death penalty under a charge of murder for the killing of John Cain, a police oliicer of the city of Houston.
[208] The state’s case may be substantially stated as follows: Cain was a policeman on duty in his allotted beat on the night of the homicide. About 3:30, or a few minutes later, in the early morning, a policeman was heard to exclaim, “Stop! I am an officer;” and almost immediately a shot was fired. One or two policemen, hearing the exclamation and shot, went to the scene, and found deceased, one of them testified, “shot ■ through and through.” He was shot in the front, the ball emerging from the bach. His statement at the time was that he was shot by a negro whom he described as being yellow and wearing a mustache. The district attorney introduced a confession taken by himself from the defendant while a prisoner under burglary convictions in the penitentiary at Huntsville. It seems the district attorney went to Huntsville in company with two or three of the constabulary or policemen of Houston, and talked with the defendant twice, leaving him with the statement that if he wanted to talk with him later he could send for him. Some time later he did send for him, as testified by the district attorney, and made a statement to him in writing. Pie says the statement was voluntarily made after due caution. There was no one present at the time except he and the defendant. Shortly after this statement was made he and appellant went to another part of the penitentiary building, and the parties whom he had taken with him from Houston and three others witnessed the statement. Two of them were police officers, and under the statute would not be recognized as attesting witnesses. Neither would the policemen from Houston be so recognized. Mr. Teague stated- he was warden of the penitentiary and witnessed it, and Mr. Binford, it seems, would hardly be classed in the category of peace officers. They testified they would not sign as attesting witnesses until it had been read over to the defendant, who had previously signed it only in the presence of the district attorney. It was then read in their presence to defendant and attested by them. It does not show when read in their presence it was explained to defendant, but they say it was read to him in their presence. In that statement appellant is made to use the following language, as directly pertinent to the issues: .
“About August 1, 1911, I caught a freight train to Conroe and stayed up there a couple of days at a negro friend of mine named Collins. A preacher named Johnson saw me there during that time. I carried a grip from Houston with me, and bought another one at a road camp, where I stopped for a day. When I left camp I went up in the town of Conroe and stayed around there until train time, and then caught the train for Houston. I had the two grips with me, and I had a pistol in my pocket. I saw the negro porter on the train, whom I knew, but I. do not remember his name. When the train was into Houston in the Fifth ward, I got my grips and when the train stopped for the Ea Porte tracks just before they got to Buffalo bayou I got off and started back toward Nance street. I was going along the track when I saw a police officer, and I stopped in the shadow of a building until I thought he was gone, and then I started- on again, and when I got a little farther I saw the officer coming toward the track along Nance street so that I would have just about met him. I was carrying both grips in my left hand, as my right hand is crippled, and was at that- time, so I switched the two grips quickly to my right hand and pulled my pistol with my left out of my left hip pocket, and began running as fast as I could north right in the center of the tracks. The officer called to me twice to stop, and I saw that he had liis gun in his hand, so as I ran I turned and fired at him once. My gun was a double-action gun, but I cocked it before I fired. I saw him fall to the ground just after I fired, and I knew I had hit him, as I heard him say something about being shot, but I do not remember his exact words. I did not stop, but kept running as hard as I could.”
This is just an excerpt from, the confession, and is quoted simply because it bears directly upon the tragedy at the time it occurred. Appellant took the stand, and said with reference to the confession that the first two times they asked Mm to make a confession or tell about it he denied knowing anything about it. He denied having anything to do with the killing, or his presence at the time and place, and the reason that he finally, on the third conversation, made the confession was because the district attorney had informed him of his official capacity, and that he had power to do with him pretty much as he pleased, and that if he would make the confession he would see that it would go easy with him, which he understood meant he was only to be sent to the penitentiary, and as he was already in the penitentiary for 58 years on cumulative sentences for burglary, it would not amount to any serious matter. In other words, he testified that his confession was false, and that he made it under the promises of the district attorney, excluding the idea that he would be hanged, which the district attorney and some of the officers said would occur if he did not make the confession. Without quoting at any length, tins is the sum and substance of his testimony on that particular line.
This confession seems to have been thought necessary for the state; otherwise this trip to Huntsville by these officers and the means of securing the confession would not have been pursued. The police officer had not identified the defendant except by a description to the effect that he was a yellow negro with a mustache, and, as the writer recollects the record, this is not undertaken to be verified by any evidence other than the statement of the policemen, and all this occurred about 3:30 or 3:40 o’clock in the morning. The state introduced another witness, who testified, substantially, that he saw a party get off the train at the crossing of the La Porte road with a couple of grips in his hand and start up the railway walking. One or more of the train officers or crew testified that a negro got on at Conroe with a couple of grips and got off at the La Porte road [209] crossing. So the substantially and; concrete result of the state’s testimony was intended to show that appellant had been to Montgomery county two or three days and had returned to Houston, where he lived and had married. The proof shows he lived in Houston Heights. He got off the train at the point designated, and started waiting hack up the track with the grips in his hand when the police officer hailed him, and he ran, pursued by the policeman with a pistol in his hand, and defendant, after running a while, turned and fired one shot and continued running.
It is the settled law of Texas that where the state puts in a confession, some of which is exculpatory, the state is bound by the confession, unless it disproves the exculpatory testimony. In Menefee v. State, 67 Tex. Cr. R. 201, 149 S. W. 138, and Winkler v. State, 58 Tex. Cr. R. 564, 126 S. W. 1134, the rule is announced that where the state introduces a confession, it is bound by such confession until disproved. Again, it was announced that the whole of the confessions introduced by the state must be taken together, and the state is bound thereby, unless the confessions are shown to be untrue by the evidence, and the confession must be considered as evidence in connection with the other facts of the case. Pratt v. State, 59 Tex. Cr. R. 635, 129 S. W. 364. Again it was held in Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996, that where the state introduces a confession, it is bound by all the statements therein except such as are proven untrue, but only by such statements as introduced.
It is further held that a confession should be received with great caution, and a jury should hesitate to convict upon it in the absence of some corroboration, and in cases of murder, without proof of the corpus delicti, a confession of guilt, uncorroborated by other evidence, is not sufficient to warrant a conviction. This proposition was laid down in Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, and has been followed since.
So it seems, taking the testimony as introduced by the state with reference to the statements of the deceased as to how the killing occurred, and the statements in the confession as claimed to be made by appellant, we have a traveler getting off the train at night, coming from a distant county, with his grips in hand, walking along the street railway, hailed by an officer, ordered to stop, about 3:30 or 3:40 o’clock in the morning, and a chasing of appellant by the officer, ordering him to stop with a pistol in hand, and a sudden turning by appellant and firing one shot, which proved fatal, and his flight continued. The state undertook to show as untrue the statements in the confession that deceased had his pistol in his hand through the testimony of one or two witnesses that when they reached him shortly after the shooting, while he had two pistols, one was in the hip pocket and the other in the waistband of his pants. This does not necessarily indicate he did not have one of his pistols in his hand. He may have returned it after being shot, for he lived until late the following evening after being shot in the early morning. The state nowhere undertakes to disprove the fact, but reiterates that appellant came in on the train and was going quietly along from where he alighted up the railway track with his grips in his hand. There is no reason shown by the state why the defendant should have been stopped by the officer. He had a right to travel on the train and a right to get off of it and go to his point of destination without let or hindrance, provided he was not doing some illegal act, and this without interference with his free locomotion by any one, officer or citizen.
We are met by the argument for the state that defendant had a pistol. The facts demonstrate that he did, and used it with deadly effect, but he was a traveler, under the state’s testimony, and therefore had a right to carry the pistol; but, in addition, there is nothing to indicate that the officer was trying to arrest him for having a pistol, or even that the officer was aware of the fact that he had a pistol until after he ordered him to stop. He just ordered the defendant to stop. Defendant did not see proper to do so and ran. The officer chased him. There is something also said in the brief for the state to the effect that the officer had a right to arrest him because he was an escaped convict. This is hardly a contention, but there is a reference to it. The record does not sustain that statement. He had been in the penitentiary nine years, but had gotten out in 1910. This homicide occurred in 1911. He had subsequent to 1910 married, and lived in Houston. 1-Ie followed various avocations, which was detailed in the testimony, in and around the city of Houston. Hater, however, the defendant had been convicted of various burglaries subsequent to this transaction, and had been sent to the penitentiary for 58 years; and had escaped in 1913, but was recaptured. Under the state’s case as made, taking the confession and the statements and all the testimony presented under the record and under the authorities cited, this case does not present one which would justify or authorize the death penalty. The parties seemed not to have known each other or to have ever met. The officer did not' know the negro, but seemed to think it was his duty to stop him for some unassigned reason. The defendant did not see proper to be held up or stopped. It was 3:30 or 3:40 o’clock in the morning. Defendant was walking along the railway track with his grips in hand, which he had the right to do, and. was ordered to stop. This does not evidence that character of case which justifies the death penalty. The state put in exculpatory testimony, evidence which precluded the death penalty or murder in the first degree, and failed to show the statements false. The defendant denied the whole contention as being true, and introduced evi-[210] deuce to prove an alibi that he was not present and knew nothing of the transaction until he read it the next day in the paper; that he did not shoot at or kill the deceased, and was not engaged in the tragedy. Outside of his confession the evidence was not sufficient to connect him with the killing, and in placing in evidence this confession with reference to the killing or to show his presence at the time and place of the killing, they put in. facts and circumstances which are in harmony with the statement of the officer as made to other officers immediately after the shooting as to being chased as he left the train.
The judgment is reversed, and the cause remanded.
PREMDERGAST, J., dissents.