Hasselmeyer v. State

White, J. It is earnestly insisted that the statute under which the indictment in this case was found is obnoxious to -constitutional objections in two respects. That law reads ns follows: “ An act to amend Article 766 of the Penal Code. Section 1. Be it enacted by the legislature of the state of 'Texas, that Article 766 of the Penal Code be, and the same is hereby, amended so as to read as follows :• “Article 766. If any person shall steal any cattle, he •shall be punished by confinement in the penitentiary not less than two nor more than five years.” It is unnecessary to copy the other portions of the Article. 'This act was approved May the 17th, 1873, and is to be found in the acts of the thirteenth legislature (Pamphlet Laws, 80). The two clauses of the Constitution of 1870 to which it is claimed that this act is repugnant are the following, viz.: “Article 12. General Provisions. Sec. 17. Every law -enacted by the legislature shall embrace but one object, and that shall be expressed in the title. ‘ ‘ Sec. 18. No law shall be revised or amended by reference to its title, but, in such cases, the act revised or section amended shaE be reenacted, and published at length.” — 698 — In so far as the objection has reference to the 17th section,, above quoted, we apprehend it does not present a new or open question. The opinion of the learned chief justice of' our supreme court in the case of The State v. McCracken,. in construing this constitutional provision in connection with an act similar in its caption to the one we are considering,, holds the following to be the correct doctrine: “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 on Const. Lim. 141; Sedgw. on Const, and Stat. Law, 53, 55, 68. In the case of Cannon v. Hemphill, Chief Justice Hemphill says, speaking-of this section: 1 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 or caprice of the legislature.’ 7 Texas, 208 ; also, see San Antonio v. Gould, 34 Texas, 49. One of the leading objects of this provision,, as shown by all of the authorities, is to prevent surprise,, misapprehension, or deception upon the legislature and upon the public by the insertion in the act of something that, would not be indicated in the title of the act. That was-one of the principal evils that led to its adoption. Tadlock v. Eccles, 20 Texas, 782. Now, can * * * this (amendment) take any one by surprise, or mislead any one-as to the object or application of the amendment? We-think not. Texas never had but one ‘Penal Code,’ in the-sense conveyed in tiffs title, and that was approved on the-26th of August, 1856 ; and it has been amended continually ever, since its adoption by referring to it, in the titles of theamendatory acts, as the Penal Code, not meaning thereby generally a body of criminal laws in force in the state, but specially the Penal Code that was adopted as one act of the legislature, and which was approved on the 26th of August, 1856. The leading object, as expressed in this title, was the amendment of the Penal Code, there being but one such» — 699 — according to the understanding of all persons who understood anything' about it; * * * and, therefore, no-one could be misled by it to his prejudice.” 42 Texas, 383. In so far as the objection involves section 18, above quoted, it is equally as untenable. The true meaning and construction of that section is simply this : The legislature • was to be prohibited, in passing an amendment to, or in revising, any law, from doing so solely by referring to the ■ title of the act, and stating wherein it was to be amended,, without publishing at length the law as amended. For instance, as an illustration, let us take the act objected to in this case. This clause of the Constitution inhibited the legislature from saying that “ theft of cattle” (supposing that to be the title of the act) should be, and was, amended by leaving out hereafter the words “ sheep, goat, or hog;” audit also prohibited the legislature from amending the act by simply declaring that “Article 766 of the Code was amended by hereafter omitting the words ‘ sheep, goat, or hog;’ ” but that, whenever they desired or intended to amend or revise a law, they could only do so-by publishing the whole act or Article in the language, full and complete, in which it .was thereafter to be read and understood. In other words, the amendment was to be an entirety of and within itself. The parts of the law which it was, and is, intended by the Constitution should be reenacted in full and at length are those parts of the old law which are intended to be-retained in connection with, and as parts and parcels of, the new law. This the legislature did in the amendment complained of, as will be seen by comparing the amended law,, as set out above, with Article 766 of the Penal Code, which is in these words: “If any person shall steal any neat-cattle, sheep, goat, or hog, he shall be punished by confinement in the penitentiary not less than two nor more than, five years.” Pasc. Dig., Art. 2410. — 700 — In the view we have taken, and the conclusion we have •arrived at, in this case, we do not deem it necessary to dis-cuss and determine the many interesting points so ably • argued in the briefs of the appellant’s counsel and the learned counsel for the state, and exhibited as incidents of the trial by appropriate bills of exception, and in the motion for a new trial, the motion in arrest of judgment, and in the • assignment of errors. Most of them are not likely to arise upon another trial. In passing, however, to the points upon which we pro.pose to determine the case, we will notice some of the . prominent grounds complained of, so far as to remark: 1st. That the charge of the court, in our opinion, was a ' fair, full, and able exposition of the law applicable to the " facts proved, and we find no error in the refusal to give the ■ special instructions asked by defendant. • 2d. The objections to the mode and manner of drawing ' the jury should have been made by challenge at the time, • and cannot be taken advantage of on a motion for new trial or in arrest of judgment. 3d. Many of the facts stated in the affidavits in support ■ of the motion for a new trial, especially those relating to •contradictory statements made by the witnesses, should have been elicited on the trial, in order that the jury might have been enabled to have passed upon them, in connection with the other facts in the case, in determining what weight should be given to the testimony. Talcing the whole case, as shown to us by the facts upon which this conviction rests, and we are of opinion that there is a deficiency in the evidence adduced of that certain, and satisfactory, and convincing character which is necessary to establish the guilt of the accused beyond a reasonable doubt. We imagine that the history of jurisprudence will be searched in vain for an example of perjury more reckless — 701 — in its daring, or unblushing in its boldness and effrontery,, than that exhibited in this case by the witness Alexander • White. He stands, not only confessed, but most solemnly condemned, out of his own mouth, as having willfully and deliberately sworn falsely as many as three times during-the progress and investigation of this case ; and, moreover,. other material portions of his testimony are positively and emphatically contradicted by the solemn affidavits of parties -. to verbal statements made them out of court, under circumstances peculiarly addressing themselves to his sense of" truth and justice, in regard to this transaction. The only other witness connecting the defendant directly with the theft of the animals charged is one from whose-connection with the transaction we do not feel at liberty to. say that he should not be considered by us in the light of' an accomplice. If he is to be considered as an accomplice, then a conviction could not be had upon his testimony, unless it was corroborated by other evidence tending in. some material matter to connect the defendant directly with the commission of the offense. Irwin v. The State, Tyler term, 1876, citing Wright v. The State, 43 Texas, 170. The fact that the cattle were found by the officer, closely - barred and confined in appellant’s stable, without explana-tion on his part, though of importance as a circumstance, still we do not think is of itself sufficient to establish his guilt, when there is a doubt thrown upon the fact as to-whether or not defendant was on his premises at all from, at, and before the time the animals were penned until after ■ they were discovered concealed in the stable. If he was-not there during that time, it is certain that he could neither • have aided in the penning, in the first instance, nor have participated in hiding them in the stable, in the second. And if he was at Bryan’s place, twelve miles away, and remained, there till Monday evening, after the cattle were found in the-stable, there is nothing to connect him with the taking at., — 702 — all, because the evidence tends to show that the cattle were "taken, or got into the herd, on the way up from Bryan’s to the house of the defendant. The defendant says that he - calculated with certainty upon proving these exonerating facts by both the witnesses, White and Young, and shows good reasons why he entertained these expectations in his motion for a new trial. He claims that a new trial will ■ enable him to establish these facts. Talcing the whole record of this most extraordinary case, ■as submitted to us, we do not feel that we would be justified in sanctioning a conviction upon the testimony before us, especially when we are inclined to believe that another investigation will be more satisfactory and conclusive in fully developing all the matters necessary to render certain the ■doubtful and uncertain circumstances surrounding it at the present time. For the reason that the court below refused to grant a :new trial, the judgment is reversed and the cause remanded. Reversed and remanded.