
    James Draper v. The State.
    Where A and B Cwho were soldiers) were shown to have started from camp, about ten or eleven o’clock in the morning, in company with C, to guide him into a trail, by which he could save some eight miles of travel upon the main road; and were seen with C about three quarters of a mile from the fort, going in the direction of the trail, and about the same distance from where the remains of C were afterwards found, and where he was apparently murdered; and it was also.shown, that A and B returned to camp about three o’clock of that day, and that C had not been heard of subsequently; and that A, when he heard that he was charged with the murder of 0, left camp without permission, going in the direction that B had that morning gone, and met, and had a long private conversation with B, and then returned to camp with him; and that A, when asked, denied having gone with C, when he left the fort, but when shown the shirt and skull found at the place of the murder, was much excited, and after a few minutes, said, “ I did not go over the hill with C ; I know nothing about itHeld, by the court, that there were no such circumstances of a common design between A and B, as would authorize the admissibility of A’s declarations, as those of a co-conspirator.
    The general rule of law is well settled, that a man’s confessions of guilt, can only be used against himself.
    If improper testimony, which may have influenced the jury, have been received, the court cannot look to the whole case, to determine whether or not there be other testimony sufficient to establish the defendant’s guilt.
    The defendant is entitled to the verdict of a jury, upon- competent testimony alone.
    Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.
    
      The appellant and James Beardall were indicted, on the 16th of September, 1858, for the murder of Louis Yare. The indictment charged the immediate killing to have been the act of Beardall; and that appellant was present, aiding, assisting, &c. The defendants were permitted to plead, and to be tried separately; and appellant being placed on trial, the jury found him guilty, and assessed his punishment at imprisonment in the penitentiary, at hard labor, for life.
    The testimony upon the trial showed, that Beardall and the appellant left Fort Lancaster, between nine and eleven o’clock on the morning of the 4th of February, 1858, with Louis Yare; that they (Beardall and the appellant,) returned about three o’clock in the evening; and that Yare had not been seen or heard of since that day. Beardall and appellant were escorting Yare to a trail, which led into the main road from Fort Lancaster to San Antonio, that could be traveled on foot or on horseback, and by which a person could' save about eight miles of travel. Yare was on horseback, and wished to go this trail way, to overtake a train with which he had intended to travel, but which had left the fort some hour or two before him. Beardall and appellant, when they left the fort, were upon foot, and armed with rifles. After they left the fort, Beardall, appellant, and Yare, were seen by one witness, who said, that he was herding horses, some three fourths of a mile from the fort, and about ten o’clock in the morning they passed him; they were “ on the trail leading to the cut off. He left them right where “ the trail takes up over the hill; he was two or three hundred “yards from them, when they stopped, as if to take a drink; “they went on, and witness went back to camp.”
    On the 21st of July, 1858, the witness, Reagan, having informed the commanding officer, that Beardall had confessed he had murdered Yare, a search was made, and about a mile and a half from the fort, on the direct road of the cut off, at the place indicated by Reagan, the remains of a human body were found; which, from the formation of the under jaw and lower teeth, were identified by the witnesses, as the remains of Yare. Rear the remains was found a gray shirt, or coat, (such as was worn by Yare, the day he left the fort,) stained with blood, with a bullet hole through the back. In the breast pocket, was found a letter, also stained with blood, addressed to Yare. The other pockets were turned wrong-side out; and pipes, tobacco, &c., were found emptied upon the ground, a short distance off. The remains of a horse were found, shot in the skull, and thrown over a bluff; near by, were also found a saddle, blanket coat, cup, and other equipments, belonging to a horseman. All the articles found, were taken to the commander of the fort; and he sent for appellant, who denied having accompanied Yare, on the day he left the fort. Appellant was then shown the skull and shirt, and asked, if he did not accompany the man, who wore that shirt, and whose skull that was, up the hill, on the day that he (Yare) left camp. He was so excited that -he could not speak, but after a few minutes said: “I did not go over the hill with Yare; I know nothing about it.” The top of the hill was about three fourths of a mile from the fort, near where they had been seen by the witness, who was herding horses; and who said, upon cross-examination by appellant, that when he last saw them, they were pointing in the direction of the path over the hill.
    On the day that Reagan made it known, that Beardall confessed to him, he had killed Yare, he (Beardall) was upon the sick list; and after it was generally known in the camp, without the knowledge or permission of the officer of the day, he left the camp, and went in the direction that appellant had that morning gone, (to the Pecos Springs, some eleven miles distant,) with others, to gather plums, and met him about two miles and a half from the camp. Appellant and one of the witnesses were waiting for the wagon to come up. When Beardall met them, he got his horse from the witness, and asked appellant to go in the bottom with him and kill deer. Witness got in the wagon and they started for the bottom, but returned back on to the road in about ten minutes, and followed after the wagon, at a slow pace. After they got to camp that evening, they were arrested. The deceased, Vare, had been the beef contractor at the fort; but, as was generally known, had sold his contract, the day before he left the fort, for $2,250.
    Reagan was then permitted by the court, overruling the objection of appellant, to testify that, on the day after appellant and Beardall left the camp with Vare, Beardall came to witness, who was confined in the guard-house, and borrowed his hunting boots; “when he (Beardall) returned the boots, he “ called me out and said, that he had shot old Louis. He shot “him in the back ; didn’t kill him ; he then called on Draper “to shoot. Draper said he would not; he then pulled Draper’s “rifle, and shot him in the neck, which killed him. He then “searched his pockets, and found only about $20; that Draper “had acted a damned cowardly part in the transaction; that he “scalped old Louis, as well as he could; that he then shot his “horse, and threw it over the bluff; hid the body of Vare in “the ravine. He said, that the reason he killed Vare, .was “because he thought he had a file with him, but he only had “about $23; that he borrowed my boots to go and drive cattle “ up and down the ravine, to make folks think that Indians had “been there. Beardall described to me, the place where Vare “'waskilled; I had never been there.” On cross-examination, he said, “I gave the information in July; I had no particular “reason for not telling before, but that I was in the guard- “ house, at the time, and wanted to keep it secret.”
    There was much other testimony, detailing minutely the search that was made for the body of Vare ; the circumstances to identify it; also, inquiries that had previously been made for Vare, by his friends. By appellant’s testimony, it was shown, that Beardall and the witness, Reagan, had had a difficulty, a short time before the latter made public Beardall’s confession. In rebuttal, it was also proven, that Reagan was a man of good character for truth and veracity.
    
      Wilcox and Leigh, for appellant.
    
      Attorney-Greneral, for appellee.
   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.  