Tabor v. State , 34 Tex. Crim. 631 ( 1895 )

The appellant was tried and convicted for theft of a hog, and his punishment assessed at two years' confinement in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal.

The appellant contends, that the court erred in refusing to quash the indictment in this case, the grounds of his contention being that the caption of the Act of March 15, 1893, amending articles 747 and 748 of the Criminal Code, is obnoxious to section 35, article 3, of the Constitution, because said caption does not embrace the subject matter contained in the amendments of said acts. It has been held by the Supreme Court and by this court, that our Penal Code can be amended by reference to the articles thereof. The State v. McCracken, 42 Tex. 383; Nichols v. The State, 32 Texas Criminal Reports, 391. The caption of the act in question embraces and refers to these two articles of the Penal Code, and the two articles set out in full, as amended. But it is contended that the word "hog" could not be transposed and legislated on in article 747. No tangible reason is afforded us why this could not be done. The object of the amendment, as declared in the title of the act, was to amend said two articles of the Penal Code, and in our opinion it was entirely competent for the Legislature to insert the word "hog" in article 747, taking it out of 748, and making it a felony; and we fail to discern how this could be construed as violative of the provision of the Constitution alluded to under the caption in question. There is no incongruity in uniting the animals "cattle" and "hogs" in the same article of the statute, and making both felonies, and the making, by this legislation, theft of hogs a felony, regardless of their value, could not operate a surprise and fraud upon the public and the Legislature which enacted the bill, and, as we understand, the purposes of the constitutional provision was merely to prescribe a rule which would put the Legislature on notice of the essential elements of the law to be enacted; and, ordinarily, when the Legislature has acted in the selection of a title, their power to do so and to embrace legislation within such caption is construed liberally in favor of the constitutionality of the enactment.

Appellant assigns as error the admitting as evidence of the written statement of the defendant, made before A.B. Short, justice of the peace of precinct number 3, of Kendall County, on the ground that A.B. Short, the justice of the peace, was the owner of the hogs, and that he was not authorized to preside at the examining trial of defendant, and that the statement made by defendant before him as an examining magistrate was invalid, and could not be taken as a judicial confession; and moreover, that the said appellant, before making his statement, was not cautioned as the law requires. The bill of exceptions, as explained by the court, shows that said statement was not admitted as a statement made in judicial proceedings, but was merely made as the statement of appellant to any person, after having been duly warned, according to the statute; and besides, the court, at the instance of the defendant, fully charged the jury that same was not admitted as the statement of defendant, made in a judicial proceeding, and authorized the jury to wholly disregard the said confession, unless they believed from all the evidence that same was established beyond a reasonable doubt; and the defendant himself, having testified that the same was not freely made, the court submitted that issue to the jury. In our opinion, it would have been entirely proper for the court to have treated said confession as made by the defendant in the course of a judicial proceeding, inasmuch as the justice of the peace was qualified to try the case against appellant, although the charge against him was for theft of the hog of the justice of the peace who tried him. Code Crim. Proc., art. 569; Davis v. The State, 44 Tex. 523. As before stated, the appellant, according to the evidence offered by the State, was legally cautioned before he made the statement, and while this was controverted by the defendant, the issue as to this matter was submitted to the jury in the charge of the court.

The court did not err in refusing to permit the defendant's counsel, on the cross-examination of the witness A.B. Short, to go into the details of family quarrels between his family and the defendant's, nor between himself and defendant. He gave him full latitude to prove the state of feeling between himself and the defendant, which it seems the defendant did not take advantage of, but insisted on proving certain quarrels and altercations between the parties, not connected in anywise with this transaction, but antedating same a year or more. The defendant says he expected to prove these altercations by said Short, or have him deny them, and then, after having laid the predicate, introduce evidence to impeach and contradict him. If this were permissible, the trial of a criminal case, if such a course should be pursued, would be interminable, and would raise issues which were not material to the case, and, if denied, would not afford the basis for impeaching testimony. Nor, in our opinion, was the refusal of the court to permit testimony that the witness Short and others, who had the defendant in charge the night before the trial, were drinking wine or playing cards, error. The same does not appear to us to be relevant or material. Said evidence does not purport to be connected with any fact having the remotest bearing upon any issue in this case.

The appellant also assigns as error that on the trial of this cause, there being evidence tending to show on the part of defendant a theft of two hogs, at the conclusion of the testimony the appellant asked the court to have the district attorney elect as to which of said hogs he would insist on a conviction of the defendant. The court declined to do this, assigning as a reason that there was no sufficient testimony showing the taking of two hogs, such as would require an election by the district attorney. There is testimony in the record showing that the prosecutor Short lost two shoats out of his bunch of hogs within a short time of each other, and some testimony with reference to the finding of the hide taken from a hog. The meat of the hog found in the possession of defendant appeared to be too fresh for the hog to have belonged to the hide in question. All of this testimony was admitted without objection, and no charge was asked in relation thereto. At most, the testimony was exceedingly meager connecting defendant with the taking of more than one hog, and he was only found in possession of the meat of one hog, and he only admitted the killing of one hog. If the testimony regarding the other hog had been objected to at the proper time, it might have been the duty of the court to have sustained the objection; or if there appeared from the record in this case a danger of conviction for another hog, not charged in the indictment, then it would have been the duty of the court to have controlled the testimony as to such other hog by a proper charge, even though not requested; but the record fails to disclose any such danger, and in our opinion the court did not err in refusing to require the district attorney to elect as to which hog he would insist on convicting the defendant for the theft of.

The evidence in this case, though of a circumstantial character, is ample to sustain the conviction. The court gave a charge on circumstantial evidence, and gave the defendant the full benefit of all his defenses in the case. The jury found against him, and we are not inclined to disturb their verdict.

The judgment of the lower court is accordingly affirmed.

Affirmed.

Judges all present and concurring.