State v. McCracken

• Decision Date: 01 January 1874
• Citation: 42 Tex. 383
• Parties: THE STATE v. LYCURGUS MCCRACKEN.
• Court: Texas Supreme Court

42 Tex. 383

THE STATE

v.LYCURGUS MCCRACKEN.

Supreme Court of Texas.

1874.

APPEAL from Gonzales. Tried below before Thomas M. Harwood (Special Judge).Kitrell, for the State.

ROBERTS, C. J.

Chapter II. of Title XXI of the Penal Code adopted by the Legislature of Texas, and approved on the 26th of August, 1856, was headed, “Of threats to commit offenses,” and contained four Articles, numbers 784, 785, 786, and 787. The first of which, 784, defined the offense, and the others were dependent upon and explanatory of that one.

From some cause the leading article, 784, was entirely left out of Paschal's Digest, without any explanation to show whether it was accidentally or designedly omitted.

For the purpose, either of restoring this omission, or of increasing the penalty, the Legislature, on the 18th of October, 1871, re-enacted all of the sections of said chapter, with a change alone as to the punishment, with a title as follows:

“CHAPTER XI.

An Act to amend an Act entitled ‘An Act to adopt and establish a Penal Code for the State of Texas, approved August 26, A. D. 1871.’

Section I. Be it enacted by the Legislature of the State of Texas, that Title XXI., Chapter II., of an Act entitled ‘An Act to adopt and establish a Penal Code for the State of Texas, approved August 26th, A. D. 1856,’ be so amended as to read as follows:

Article 784. If any person shall threaten to take the life of any human being, or to inflict on any human being any serious bodily injury, he shall be punished by confinement in the penitentiary for a period of not less than one year nor more than five years, or by fine of not less than five hundred dollars, nor more than two thousand dollars.”

Then follows Articles 785, 786, 787, as they are in Paschal's Digest of Laws. The word and number, “Chapter XI.,” constituting the above heading, has reference to the chapter in the general laws of the “Second session, 1871,” and not to the chapters of the Penal Code. Pamphlet Act, p. 15, 2 Sess. 1871. 12th Legislature. 2 Paschal's Digest, p. 1338.

The defendant was indicted for seriously threatening to take the life of one Diances Beaty, alleged to be a human being, and the indictment was filed on the 11th of May, 1874, since the enactment referred to of the 18th of October, 1871. The indictment is in regular form. An exception was filed to set it aside, on the ground that “there was no law to support said indictment,” which being sustained, an appeal was taken by the District Attorney to this court.

No brief has been filed pointing out any objection to the indictment or to the law. We are informed that the exception was sustained on account of the mistake in the title to the Act of the 18th of October, 1871, in which it is recited that the Act amended was “approved August 26th, 1871,” instead of “approved August 26th, 1856,” as it should have been; and that thereby the amendatory Act of 18th of October, 1871, was rendered void for want of compliance with Section 17 of the General Provisions of the Constitution of the State of Texas, which prescribes that, “Every law enacted by the Legislature ‘shall embrace but one object, and that shall be expressed in the title.” (Paschal's Digest, page 1127.)

As to whether this provision is mandatory or only directory to the Legislature, has been decided differently by different States in which it has been adopted. (Cooley's Con. Lim., 141, Sedgwick Stat. and Con. Law, 53-568.)

In the case of Cannon v. Hemphill, Chief Justice Hemphill says, speaking of this Section, “It would be irrational to suppose that this provision of the Constitution is merely a directory one, which may be obeyed or disregarded at the will and caprice of the Legislature.” (7 Texas R., 208. Also see San Antonio v. Gould, 34...