The appellant and James Taylor were jointly indicted for the murder of Gabriel Slaughter, which is charged to have been committed on March 11, 1874. The jury found the appellant guilty of murder in the second degree, and assessed his punishment at ten years’ confinement in the penitentiary

We are of opinion that there are material errors in the proceedings upon the trial, for which the judgment must be reversed. On the trial of the cause the court admitted in evidence, over the objections of appellant, the testimony of the witness Brown, as to the declarations made by appellant while in prison. This evidence was evidently introduced to form a link in the chain of testimony to convict the appellant. In this we think the court erred.

*397The fact that the declarations were made while he was in prison upon another charge does not alter the case. The statute is imperative which declares that the confession shall not be used, “if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused taken before an examining court in accordance with law, or made voluntarily after having been first cautioned that it may be used against him; or unless, in connection with such confession, he make statement of facts or of circumstances that are found to be true, which conduce to establish his guilt, such as finding of secreted or stolen property, or instruments with which he states the offense was committed.” Pasc. Dig., art. 3127.

The evidence was material. It tended to show that the appellant desired to secrete the pistol identified as belonging to one Sutton, who was in company with Gabriel Slaughter when they were both killed. This pistol Sutton had with him when he was killed ; and this testimony was also doubtless offered to show that appellant, in whose possession it was found, was present when the killing occurred.

Our Code provides as follows :

“Art. 3058 [Pasc. Dig.]. The jury are the exclusive judges of the facts in every criminal cause, but not of the law in any case. They are bound to receive the law from the court, and be governed thereby.

“Art. 3059. After the argument of any criminal cause has been concluded, the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony. This charge shall be given in all cases of felony, whether asked or not.”

The court did not charge the law applicable to murder in the second degree or manslaughter. It did not instruct them *398as to the legal definition of “ implied malice,” or the punishment of murder in the second degree. The court should not charge the jury on the law of murder in the second degree when there is nothing in the evidence to require it. The judge is only required to charge the law applicable to the facts in evidence. At the same time, to sustain a verdict of conviction of murder in the second degree, the jury should have been instructed by the court upon the different degrees of murder, and informed by the court as to the punishment which might be assessed for either grade, whether the appellant asked such instruction or not.

The finding of the jury is conclusive as to the grade of the offense, and was received and made the basis of the judgment. It might be urged with some plausibility, if the punishment assessed by the jury had been the lowest punishment permitted by law for the offense of murder in the second degree, then, that the appellant would have no cause to complain. But it was not; the jury exercised their own discretion, unrestrained and uninformed. In a criminal case the jury should be distinctly charged as to the punishment which may be imposed by their verdict. The j ury have no other guide but the court to direct them in finding their verdict. It is made their duty by the statute to receive the law from the court and be governed by it. The finding of 'the jury in this case is strange and unaccountable.

The court also committed an error in charging that express malice towards Sutton would render the unintentional killing of Slaughter, without malice, murder in the first degree, if Slaughter was killed in attempting to kill Sutton. Such killing would be murder in the second degree; but, as the appellant was not convicted of murder in the first degree, it is an error of which he cannot be heard to complain. Farrer v. The State, 42 Texas, 265; McCoy v. The State, 25 Texas, 33.

*399The question to determine is not whether the prisoner is guilty. It is whether he has been tried and convicted as the law requires. Conformity to the requirements of the law are no less important to the best citizen than to the worst criminal. There are safety and security for none unless the laws are faithfully, fairly, and impartially administered. The highest and best security for the preservation of our rights and liberties is a substantial adherence to the requirements of the law prescribed for judicial proceedings.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.