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Tex. Crim. Rep. 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 purpose 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, or 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 639 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. 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 time of each other, and some testimony with reference to the

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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 evi nce, 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.
Judges all present and concurring.

STATUTES-TITLE-SUBJECT MATTER OF ACT.–The subject of an act is sufficiently expressed in its title, when it is to amend a pre-existing act, the title of which is recited verbatim in the title of such amendatory act, but without mentioning the year of its enactment: Willis v. Mabon, 48 Minn. 140; 31 Am. St. Rep. 626. The title of an act entitled, "An act amending section 2 of chapter 8 of the charter of the city of Minneapolis," creating liability for damages caused by a change of street grade, and providing for a special tax or Assessment on property benefited to pay the same, is sufficient, and the law is not unconstitutional because the subject thereof is not expressed in its title: Kelly v. Minneapolis, 57 Minn, 294; 47 Am. St. Rep. 605, and note.

EVIDENCE-CONFESSIONS AT PRELIMINARY EXAMINATION.--It is the duty of a justice of the peace, presiding at the preliminary examination of a person charged with crime, to caution the latter that statements or confessions there made may be used against him, and to inform him of his legal rights in the premises. Unless he is so cautioned and informed, a confession made by him at that time is not admissible in evidence on his subsequent trial: Coffee v. State, 25 Fla. 501; 23 Am. St. Rep. 525, and note with the cases collected. See, also, the extended note to Daniels v. State, 6 Am. St. Rep. 242, and especially the extended note to State v. Ciifford, 41 Am. St. Rep. at page 524.

CASES

IN THI

SUPREME COURT

OT

TEXAS.

SAN ANTONIO RAPID TRANSIT STREET RAILWAY

COMPANY V. LIMBURGER.

(88 TEXAS, 79.) RAILROADS-STREET RAILWAYS AS AN ADDITIONAL SERVITUDE.-The operation of street railways does not impose an additional servitude upon a public street.

RAILROADS-STREET RAILWAYS-DAMNUM ABSQUE INJURIA.-The original purposes for which a street was dedicated embrace the operation of a street railway, and if the owner of adjacent property suffers a loss by reason of such operation, it is damnum absque injuria.

RAILROADS-INTERFERENCE OF STREET RAILWAYS WITH ACCESS TO BUSINESS HOUSES.–The right of a street-car company to run its cars over its track is not superior to the right of another person in the use of the street. Hence, if there is a multiplicity of tracks in a narrow street, an abutting lotowner has the right, though it interferes with the passage of the cars, to load and unload invoices of goods in front of his storerooms facing the street occupied by such railways, but he must not make the cars wait longer than such reasonable time as is necessary for his purpose.

RAILROADS – STREET RAILWAYS – DANGEROUS TRACKS-DAMAGES.-A street railway company is answerable in damages to an abutting property owner for allowing its rails to project above the surface of the street, or to become dangerous in other respects.

Ogden & Harwood, for the appellant.
C. A. Keller, for the appellee.

81 GAINES, C. J. The defendant in error brought this suit to recover of plaintiff in error damages for the depreciation in value of certain business lots in the city of San Antonio, alleged to have been caused by the construction and operation of the company's railway along the street upon which the lots fronted. The cause of action is stated in the petition as follows:

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"4. That heretofore, to wit, on or about the months of October, November, and December, 1891, said defendant corporation, in violation of plaintiff's rights and against his wishes, did unlawfully build, construct, and put down a line of electric street railway from the United States postoffice, on Alamo plaza and Avenue E, in said city 82 of San Antonio, along Avenue E to Austin street; thence along said Austin street to Grand avenue; thence along Grand avenue to River avenue; thence along said River avenue outside of the corporate limits of the said city of San Antonio to the suburban town known as Alamo Heights, at the headwaters of the San Antonio river; and that said line of street railway was built from Alamo Heights along River avenue to Grand avenue, along Grand avenue to Austin street, then down Austin street to Avenue E, and to the postoffice; that said line of street railway runs along and upon Grand avenue on the north side of block 38, and turns into Austin street and runs along and upon Austin street on the east side of said block 38; and that on said line of street railway said defendant operates, controls, manages, and runs electric cars and motors for the purpose of transporting passengers and freight for hire and profit from the said city of San Antonio to said town of Alaino Heights; that said cars are run along and upon said Austin street, and in front of said block 38, at regular intervals of about ten to twenty minutes.

“5. That plaintiff was, at the time said line of street railway was built and constructed as aforesaid, and still is, the owner in fee simple of lots 14 and 15, in block 38, on said Austin street; that he also owned a large rock storehouse and a small frame store building located upon said lots 14 and 15, in said block 38, and fronting east on the west side of said Austin street, which have been used and rented for storerooms for the retailing of merchandise. That said premises and improvements, at the time the said defendant built, constructed, and laid down said railway track in front of said block 38, were of the value of twenty thousand dollars.

“6. That said Austin street is only about forty feet wide, and before said defendant built said line of street railway, another corporation, to wit, the San Antonio Street Railway Company, already had a double track electric street railway upon said Austin street, operating a line of electric street railway, motors, and cars from that portion of the city of San Antonio known as Government Hill to the corner of Soledad and Houston streets, and another line of electric motors and cars using the same track and running from the Southern Pacific, or 'Sunset,' depot to a suburban town outside of the city limits of the city of San Antonio, known as

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