Will sax, Judge.
I. We are not called upon to determine whether or not the statements made by Willis and William Conner, on the night after the murder, were properly admitted in evidence. There is no bill of exceptions in the record showing that they were objected to by the defendants. In his charge to the jury the learned judge fully and correctly instructed in relation to these statements, and as to the extent to which they might be considered by the jury. The jury were told in the charge that they should not consider these statements against the defendant Charles Conner, because he was not present when the same were made. “ But,” proceeds the charge-, “if you should find that said declarations, conversations and statements occurred and were made at said time and places, by said parties, as testified to by said witness, and that the defendant Fed. Conner was present, and in such a position that he heard them; and that they were of such a character, and occurred under such circumstances, that called for reply on his part, or that silence or acquiescence amounted to assent, then you are authorized to consider the same in connection with the other evidence in the case in determining the guilt or inneteence of the said Fed. Conner.” This was a correct exposition of the law upon this subject, and the special instructions requested by the defendants’ counsel upon the same subject were properly refused. (Long v. The State, 13 Texas Ct. App., 211.)
II. We regard the evidence upon which the convictions are based as wholly circumstantial as to both the defendants. There is no direct evidence that either of them committed the murders or participated in their commission. The statements made by Willis and William Conner did not amount to a confession or admission that they had killed Eli Lowe and Kit Smith, or either of them. We would naturally and reasonably infer from these statements, and the circumstances under which they were made, that they related to the murders in question, and that Willis and William Conner had perpetrated the murders. But still they are not direct; but only circumstantial evidence of the correctness of such inference. If the statement had been, “We, Willis, William, Fed. and Charles Conner killed Eli Lowe and Kit Smith,” it would have been a confession of guilt, and direct evidence of guilt, against the person making the same, and also perhaps against any one of the persons named who was present and heard the statement and did not deny the truth of it. But no such direct and explicit confession is contained inthe statements in evidence, and they can only be regarded, like all the other evidence in the case, as circumstantial.
In instructing the jury upon circumstantial evidence, the learned judge commences his charge upon this subject as follows s “ The evidence in the case before you being wholly circumstantial in so far as it relates or is applicable to the case of the defendant Charles Conner, it is necessary,” etc. Thus he expressly limits his charge upon circumstantial evidence to the case of Charles Conner, thereby giving the jury to understand that the case of Fed. Conner did not depend wholly upon that character of evidence, but was supported, in part at least, by direct evidence. This, we think, was error. The charge upon circumstantial evidence should have been made applicable to the case of Fed. as well as to the case of Charles. It was a part of the law of both cases, and its omission from the charge, as has been repeatedly held, was error for which the judgment must be reversed, although such error was not excepted to at the trial. (Faulkner v. The State, 15 Texas Ct. App., 115; Garcia v. The State, Id., 120; Cook v. The State, 14 Texas Ct. App., 96; Lee v. The State, Id., 266.)
As to the conviction of Charles Conner, we find no error in it. There is no error in the charge as to him, and in our opinion the evidence, leaving out of view the statements of Willis and William Conner, is sufficient to sustain the verdict of the jury.
The judgment as to Fed. Conner is reversed and the cause as to him is remanded. As to Charles Conner the judgment is affirmed.
Ordered accordingly.
[Opinion delivered October 15, 1884.]