The appellant was tried at the June term, 1878, of the District Court of Johnson County, for the murder of Mrs. Mary A. Hester, alleged to have been committed February 21, 1877, and was convicted of murder in the first degree, and adjudged to suffer the death penalty. A motion for a new trial was made and overruled, and this appeal is prosecuted.

It is shown by the record that Mrs. Hester was most fonlly murdered, at her home in Johnson County, whilst sitting at the supper-table, by the discharge of a shot-gun by some one from the outside of the house.

*13Three persons are charged, in separate indictments, each with the perpetration of the crime, viz., James M. Bowden, Samuel H. Myers, and this appellant. On the trial below, counsel for the prosecution placed Bowden on the stand as a witness, who testified, among other things, that he and Samuel H. Myers had perpetrated the murderous deed, Bow-den furnishing the shot-gun and Sam doing the shooting. Other witnesses testified for the State, apparently for the purpose of corroborating the testimony of the witness Bow-den, by proving certain threats made by Samuel H. Myers against Mrs. Hester, and statements made by Samuel H. Myers concerning the deceased, going to show ill-feeling on his part towards her; and also for the apparent purpose of connecting this appellant with the supposed conspiracy between Bowden and Samuel H. Myers to take the life of Mrs. Hester, and also to connect him with the murder in such manner as to render him amenable to the law as a principal offender.

The most important questions for consideration here arise on bills of exception taken to the ruling of the court in admitting evidence over the objections of counsel for the accused, relating to the testimony on the subject of a corroboration of the testimony of Bowden, and the testimony offered to connect this appellant with the acts and declarations of Samuel H. Myers, so as to render him liable as a co-conspirator on the one hand, or as a principal on the other, and involving the charge of the court on these subjects. It appears that when the prosecution proposed to prove “ declarations, threats, and statements made by Samuel H. Myers at different times and places, before the death of Mrs. Hester, abusive of her and to take her life,” a bill of exceptions recites that all this testimony was objected to, “ because it was not shown that the defendant, T. J. Myers, was present at the time of said several declarations, threats, and statements of said Samuel H. Myers, and- because the same were mere hearsay.”

*14The judge appends to the bill of exceptions the following explanation of his action, to wit: “All of this character of testimony was admitted upon the ground that the court had to determine as a fact whether or not a conspiracy or common design existed between the several persons charged with the murder of Mary A. Hester, before it (the court) could determine whether these declarations were competent or incompetent, and that a conspiracy or common design may be established by circumstances, as well as any other fact; that the court could not intelligently determine this question till the testimony for the State was closed; and that the consideration or non-consideration of these matters by the jury would be controlled by the charge.”

It is also shown by bill of exceptions, that counsel for the accused moved the court to exclude the testimony of Bowden, after he had testified, “ because his testimony was not corroborated, and because there was no evidence tending to corroborate it, or any part thereof, and because Bowden testified that the defendant was not connected with the killing of Mrs. Hester.” The reason for overruling the motion is thus stated by the judge, in giving a bill of exceptions to the ruling: “ The court refused this motion on the ground that, as to whether there was any evidence tending to connect the defendant or Sam Myers with the killing of Mrs. Hester, outside of the testimony of Bowdén, and tending to corroborate his testimony, was a fact for the jury, to be determined by them from all the evidence they were permitted to consider by the court.”

It is further shown by bill of exceptions, that, after the witnesses Bowden, Combs, Williams, Lewis, Myers, Wynne, and others, in relation to declarations, threats, and statements made by Samuel H. Myers against Mrs. Hester, before her decease, had been admitted, counsel for the accused moved the court to exclude their testimony from the jury, on these grounds : “ Because (1) no conspiracy was shown between this defendant and James M. Bowden and Samuel *15H. Myers, or either of them, to take the life of said Hester, and no proof of a common design between this defendant and said Bowden and Myers, or either of them, as would justify the admission of the declarations of said Bowden or Myers as those of co-conspirators in said murder; (2) the same were mere hearsay, so far as this defendant is concerned; (3) the same were wholly irrelevant, and calculated to mislead the jury.”

The court, in giving a bill of exceptions to the overruling of the motion, makes the explanation that it was “announced to counsel for the State and the defence that the statements of Sam Myers, unless in the presence of defendant, and assented to by him, showing or tending to show that he or any other person killed Mary Hester, could not be evidence against the defendant in this case ; and that a conspiracy or common design might be established by circumstances ; and that the court could not determine this as a question of fact, necessary to be determined in order to pass on the competency or incompetency of such declarations, until the State had closed its testimony; and that the matter would be controlled by the charge; and that the court overruled the motion of the defendant at the time, on this ground alone.”

The court charged the jury on the vital questions disclosed by the record, as follows, embracing the fourth and fifth paragraphs of the charge : —

“4. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offence committed ; and the corroboration is not sufficient if it merely shows the commission of the offence. The jury are instructed that the witness Bowden stands before you in the attitude of an accomplice in the murder of the deceased, Mrs Mary A. Hester; and that you cannot find, solely upon the evidence of the witness Bowden, that Sam Myers, or any other person, is guilty of the mur*16der of Mrs. Hester, unless there is evidence before you other than the testimony of Bowden, which evidence tends to connect the said Sam Myers with the commission of the killing, thus corroborating the testimony of said Bowden; and this corroborating evidence of the witness Bowden, and tending to connect Sam Myers with the killing of Mrs. Hester, must be in reference to some fact other than the fact that Mrs. Hester was killed, and killed by a gunshot wound, otherwise you cannot legally find from the testimony of Bowden that Sam Myers killed Mrs. Hester. If, under the foregoing instruction, you are satisfied, beyond a reasonable doubt, that Sam Myers killed Mrs. Hester, you are further instructed that you must be convinced by the evidence, beyond a reasonable doubt, in addition, that, the defendant in this case, Thomas J. Myers, was, in some of the ways defined by the law, so connected with the killing of Mrs. Hester as to make him a principal in said killing, or you will acquit the defendant. So far as any statements of Sam Myers are concerned, that may be before the jury, tending to show or connect him with the killing of Mrs. Hester, they are not legal evidence upon which you can convict the defendant in this case of the murder of Mi'S. Hester. The evidence, outside of any statements of Sam Myers, except such as were made in the presence of the defendant, and to which he assented, must convince the minds of the jury, beyond a reasonable doubt, that Sam Myers did kill Mrs. Hester, and that the defendant, Thomas J. Myers, was so connected with the killing of Mrs. Hester as to constitute him a principal in such killing ; otherwise, you will acquit the defendant.

“5. If from the evidence in this case, and the law in reference to the same, as authorized in this charge, the jury shall believe, beyond a reasonable doubt, that, in the county of Johnson, at any time before the finding of the bill of indictment in this cause, Sam Myers did, with a gun, the same being a deadly weapon, with his express malice, *17shoot at and kill Mary A. Hester, —that is, you so find that he shot at and killed the deceased, with a sedate and deliberate mind, and fixed purpose and formed design to kill the deceased, or do her some great bodily injury, — then, in law, Sam Myers would be guilty of murder in the first degree ; and if the jury shall find from the evidence, beyond a reasonable doubt, that the defendant, Thomas J. Myers, did advise the said Sam Myers, or agree with him, to kill said Mary A. Hester, and was present at the time she was killed, or that the said Thomas J. Myers knew the unlawful intent and purpose of said Sam Myers,” etc., — giving a proper charge on the subject of principals as defined in the Code.

The ninth and concluding paragraph of the charge is as follows : “ There is in this case no evidence before you that the defendant, Thomas J. Myers, killed Mary A. Hester, or of a conspiracy between the defendant and Sam Myers to kill Mary A. Hester. This being the case, the statements of Sam Myers that he did kill Mary A. Hester, or his declarations showing an intent to do so, or in any other way tending to establish the fact that he did so, except such statements (if any) made in the presence of this defendant, and to which he assented, cannot be considered by you as in any way' establishing the fact, as against this defendant, that Sam Myers, or any other person, killed Mrs. Mary A. Hester ; but in this case you must be satisfied that Sam Myers did kill Mary A. Hester, from evidence, beyond a reasonable-doubt, other than any statements of Sam Myers confessing the same, or tending to establish the same (except as before stated) ; and if you do not so find, then you will acquit the defendant. But if you are satisfied that Sam Myers did kill Mary A. Hester, by the testimony other than the statements of said Sam Myers, yet if you so find, but do not find from the evidence, beyond a reasonable doubt, that the defendant, Thomas J. Myers, was connected with the killing of Mary A. Hester, in some one of the ways which, under the law in this charge given you, will constitute him *18a principal in said killing, you will acquit the defendant. The statements of Sam Myers would be evidence against him to show that he did the killing, if he was on trial, but, not being on trial, cannot be taken against this defendant to establish his guilt.”

We do not propose, nor is it necessary, to discuss the law of conspiracy as applicable to trials for the offence of conspiracy, further than to say that by the Texas Code conspiracy is a substantive offence, which may be committed by two or more persons, and which is indictable and punishable as such, and that courts and counsel often confuse the writings on the subject with the rules of evidence applicable to ordinary cases. In the present case, to our mind, the question raised upon the evidence, and the principles of law embodied in certain portions of the charge, would have more direct application to a trial for the crime of conspiracy, or to a case where more than one person may be jointly indicted for a given offence, than to a case like the present, where one person is alone on trial, and is charged singly by the indictment. Nor do we propose to discuss the question of admitting evidence to establish a conspiracy, when none is averred in the indictment.

On trials for the crime of conspiracy, it may be stated, in a general way, that whatever tends to prove the essence of the offence — that is, the unlawful agreement and combination of the parties—would be admissible in evidénce, and may be either direct or circumstantial, generally the latter. 3 Greenl. on Ev., sects. 91, 93. By our Code, a conspiracy is defined to be an agreement entered into by two or more persons to commit any one of the following offences^ to wit: murder, robbery, arson, burglary, rape, or theft. 2 Rase. Dig., arts. 6576, 6580. In trials for this offence, the following rule, laid down by Mr. East, is cited by Mr. Roscoe: “ The conspiracy or agreement among several to act in concert, for a particular end, must be established by proof before any evidence can be given of the act of any *19person not in the presence of the prisoner; and this must, generally speaking, be done by evidence of the party’s own acts, and cannot be collected from the acts of others, independent of his own, — as, by express evidence of the fact of a previous conspiracy together, or of a concurrent knowledge and approbation of such others’ acts.” Eoscoe’s Cr. Ev. 383. But we do not propose to make any ruling on this subject, but simply to call attention to it.

As to the general question of the admissibility of the statements of persons in evidence, the general rule is given by Mr. Greenleaf. Acts and declarations of one of a company of conspirators are admissible in regard to the common design. ‘ ‘ Here ( says this writer ) a foundation must first be laid by proof sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is, therefore, original evidence against each of them.” 1 Greenl. on Ev., sect. 111.

We see no serious objection to the rulings of the court on the evidence, except that, when the evidence had all been admitted, and the court found that there was no evidence of a given fact, the subject had better have been withdrawn from the consideration of the jury entirely. It is of doubtful expediency, to say the least of it, to admit improper evidence to the jury, and depend upon controlling it by a charge; and especially so in an exciting criminal trial.

As to the general charge of the court, it appears to have “guarded every right of the accused with great care. The law relating to principals in crime was properly given to the jury. In one important particular, however, we are of *20opinion an error was committed, calculated to prejudice the rights of the accused and to mislead the jury in determining upon their verdict. The court charged, in a general way, that the uncorroborated testimony of an accomplice would not support a verdict of guilty, but failed to inform the jury as to who are accomplices in the sense requiring corroboration. True, the jury are told that the witness Bow-den stands in the light of an accomplice, but when an attempt is made to apply the general rule to the case on trial (the testimony of Bowden, and the necessity of corroborating his testimony), the charge is confined chiefly to Sam Myers, not on trial, rather than to the defendant then on trial, and was not so worded or guarded as not to allow the jury to consider the testimony of Bowden for what they might consider it worth without corroboration, so far as the defendant was concerned.

We are of opinion, further, that the charge on the subject of circumstantial evidence was, in view of the evidence, defective. A charge on this subject should be so guarded as to confine the action of the jury to facts, rather than mere surmises. Hampton v. The State, 1 Texas Ct. App. 642; Black v. The State, 1 Texas Ct. App. 368. The attention of the court was invited to this omission, by an .instruction asked and refused.

The objections to the indictment were not well taken.

To our minds, the question of the guilt of this appellant was made to depend to so great an extent upon the guilt of Sam Myers, that the jury must either have been misled by the charge, or have disregarded it in making their verdict.

This matter beins; brought to the attention of the court in the motion for a new trial, the motion, therefore, should have been granted ; and because of error in refusing a new trial, the judgment is reversed and the case remanded.

Reversed and remanded.