James Draper v. The State, 22 Tex. 400

Bell, J. We are of opinion, that the court below erred, in permitting the declarations of Beardall to go to the jury, as evidence against the defendant, Draper.' Apart from the declarations of Beardall, the testimohy would have been wholly circumstantial. Beardall’s declaration made it certain, that Yare had come to his death, on the day when he was accompanied from Fort Lancaster, by Beardall and Draper. But for Beardall’s declaration, the jury might not have been satisfied of the main fact to be ascertained, viz., that Yare was killed by Beardall, at a time when Draper was present.

The declaration of Beardall, therefore, settled a most important fact to be found by the jury. The declaration was mere hearsay, so far as the defendant, Draper, was concerned. There was no such certain proof of a common design between Beardall and Draper, as would authorize the admissibility of Beardall’s declarations, as those of a co-conspirator. The court instructed the jury that, before they could find Draper guilty, they must be satisfied, first, that Louis Yare was killed, as charged in the indictment; and secondly, that Beardall killed him, as charged.

Now it is impossible to say, that the jury were not satisfied of these facts, mainly from the declarations of Beardall. The general rule of law is well settled, that a man’s confessions of guilt, can only be used against himself. Mr.

Phillips, in his work on Evidence, vol. 1, p. 414, says, that where a prisoner makes a confession implicating other persons, “ the judge will not fail to caution the jury, that the confession ought not to affect any one but the person who made it.” In the present case, Draper was tried separately from Beard-all ; Beardall’s confessions were hearsay, as against Draper; and it is impossible to say, that the verdict of the jury was not influenced by this improper testimony.

In such cases, we cannot look to the whole case, to determine whether or not there is other testimony sufficient to establish the defendant’s guilt. To do so, would be, in effect, to set aside the verdict of the jury, and to form conclusions for ourselves from the evidence. The defendant is entitled to the verdict of a jury, upon competent testimony alone. The judgment of the court below is therefore reversed, and the cause remanded for another trial. Reversed and remanded.