Tabor v. State

• Decision Date: 22 June 1895
• Citation: 31 S.W. 662
• Parties: TABOR v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 662

TABOR v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1895.

Appeal from district court, Kendall county; Eugene Archer, Judge.

Henry Tabor was convicted of the theft of a hog, and appeals. Affirmed.

John Dowell, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

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, art. 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. See State v. McCracken, 42 Tex. 383, and Nichols v. State, 32 Tex. Cr. R. 391, 23 S. W. 680. 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 No. 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 a judicial proceeding, 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...