Murray v. State

Opinion of the Court on Motion for Rehearing.

White, Presiding Judge.

Appellants in this case were, on information, prosecuted, convicted, and fined one dollar, for *630 an offense popularly known and designated as “killing a railroad engine, or locomotive.” At a former day of this term, their appeal coming on to be heard, we held that the information preferred against them charged no offense known to the laws of this State, and that, consequently, the judgment should not only be reversed, but that further prosecution under said information should be dismissed, because the same charged no offense against the law.

A motion has been made by the Assistant Attorney General, in which he is joined in person by the Attorney General, for a rehearing of the case; and the latter officer presents us with quite an elaborate printed argument, in which he endeavors to show that our decision of the matter was a misapprehension of the law, and a mistaken construction of the statute upon which the prosecution was predicated.

The statute, Article 683 of the Penal Code, is in the following words, viz : “If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain, or other agricultural product or property, real or personal, of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property, otherwise provided for by this code, he shall be punished by fine not exceeding one thousand dollars.”

It is contended that, under a fair and necessary construction of the language of this article, the acts charged against the appellants in the information herein come plainly and legitimately within the purview of its language. The first question discussed is as to the proper punctuation of the language used, and it is contended that the grammar of the section favors the construction put upon the article by the prosecution.

We deem the question of punctuation wholly immaterial, and we wish it distinctly understood that the matter of punctuation never entered, in the most remote degree, into the discussion and decision of the case, as shown by our previous opinion. On the contrary, we recognize to its fullest extent the rule, which, though embraced in the civil statutes, is, in our opinion, equally as applicable, and of binding force in criminal prosecutions, to the effect that “grammatical errors shall not vitiate a law, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands, and in no case shall the punctuation of a law control or affect the intention of the Legislature in the enactment.” (Art. 3139, Rev. Stat.)

*631 In Shridley v. The State, 23 Ohio State, 130 , it was held that punctuation may always be disregarded or made to conform to the clear meaning and intention of the statute. So, in Randolph v. Bajme, 44 California, 366, it was held that courts will not permit an erroneous punctuation of the statute, in printing it, to have the effect of giving it an absurd construction. Independent of our statutes, these rules are now of almost universal application in matters of statutory construction.

Discarding, then, from consideration all rules regarding punctuation or grammar, we come down to the plain question as to. the proper construction which should be placed upon the language used in said article; and, in order the better to be enabled to do this, it becomes necessary to resort to those plain and well established rules which have been adopted and settled by long usage as the best guides by which the courts should be governed in their judicial action on such questions.

The leading and controlling rule in the construction of statutes, in fact the primary and fundamental one, is to interpret them according to their true meaning and intent. To ascertain this intent it is the duty of the court to find, by other established rules, what was the fair, natural, and probable intent' of the Legislature. For this purpose the language employed in the act is first to be resorted to. If the words employed are free from ambiguity and doubt, and express plainly, clearly, and distinctly, the intent, according to the most natural import of the language, there is no occasion to look elsewhere. (People v. Schoonmaker, 63 Barbour, N. Y., 47; citing McCluskey v. Cromwell, 11 N. Y., 601 .)

Another good rule of construction is that, “when a particular class is spoken of, and general words follow, the class first mentioned is to be takep as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.” (Matter of Hermance et al., 71 N. Y., 487 ; citing Archb. of Canterbury’s case, 2 Coke, 46a; Lyndon v. Stanbridge, 2 K. & N., 51; Reg. v. Edmundson, 2 E. & E., 83; Gibbs v. Lamen, 30 L. J., ch., 170; Broom’s Legal Max., 625.)

Mr. Bishop says: “As stated by Hawkins, the doctrine is: ‘No parallel case which comes within the same mischief shall be construed to be within the purview of it (the statute) unless it can be brought within the meaning of the words.’ In slightly different language, though a case of this sort is fully within the mischief to be remedied, and even of the same class, and within *632 the same reason as other cases enumerated in the statute, construction will not be permitted to bring it within the statute unless it is also within the statutory words.” (Bish. on Stat. Crimes, 2 ed., sec. 220.)

We are aware that the rule of the common law which requires that penal statutes should be strictly construed, is abrogated in this State, and that there is now no distinction recognized with us in construing statutes, between those that are criminal or penal and those that are civil; but all are required to be construed alike liberally, with a view to carry out the intention of the Legislature. A general rule of construction is expressly provided in Article 9 of the Penal Code, which reads: “This code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words of a law.” (Act of February 12, 1858, p. 56; Penal Code, Art. 9.)

That distinguished jurist and law writer, Mr. Dillon, in the case of The United States v. Clayton, discussing this subject, uses the following apt, pertinent, and forcible language. He says: “This is, as above observed, a question of legislative intention. How, in what manner do the courts ascertain the legislative will? We answer that it is ascertained primarily and chiefly by the language the Legislature has used to express its meaning. We must suppose in the enactment of statutes, particularly statutes so important as the one under consideration, that Congress weighed well the words it employed. In the office of interpretation, courts, particularly in statutes that create crimes, must closely regard, and even cling to the language which the Legislature has selected to express its purpose. And when the words are not technical, or words of art, the presumption is a reasonable and strong one that they were used by the Legislature in their ordinary, popular, or general signification. Statutes enjoin obedience to their requirements, and, unless the contrary appears, it is to be taken that the Legislature did not use the words in which its commands are expressed in any unusual sense. For these reasons, whose cogency is obvious, the law is settled that, in construing statutes, the language used is never to be lost sight of, and the presumption is that the lan *633 guage is used in no extraordinary sense, but in its common, every day meaning. When courts, in construing statues, depart from the language employed by the legislator, they incur the risk of mistaking the legislative will, or declaring it to exist where, in truth, it has never had an expression. The legitimate function of courts is to interpret the legislative will, not to supplement it, or to supply it. The judiciary must limit themselves to expounding the law; they can not make it. It belongs only to the legislative department to create crimes and ordain punishments. Accordingly courts, in the construction of statutable offenses, have always regarded it as their plain duty cautiously to keep clearly within the expressed will of the Legislature, lest otherwise they shall hold an act or an omission to be a crime, and punish it, when in fact the Legislature had never so intended it. 6 If this rule is violated,’ says Chief Justice Best, ‘ the fate of the accused person is decided by the arbitrary discretion of the judges, and not by the express authority of the laws.’ The principle that the legislative intent is to be found if possible in the enactment itself, and that the statutes are not to be extended by construction to cases not fairly and clearly embraced in their terms, is one of great importance to the citizen. The courts have no power to create offenses, but if, by a latitudinarian construction, they construe cases not provided for to be within the legislative enactments, it is manifest that the safety and liberty of the citizen are put in peril, and that the legislative domain has been invaded. Of course, an enactment is not to be frittered away by .forced constructions, by metaphysical niceties, or mere verbal and sharp criticism; never the less the doctrine is fundamental in English and American law, that there can be no constructive offenses; that before a man can be punished, his case must be plainly and unmistakably within the statute, and if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused. These principles of law admit of no dispute, and have been often declared by the highest courts, and by no tribunal more clearly than the Supreme Court of the United States.” (Citing The United States v. Morris, 14 Pet., 464 ; The United States v. Wiltberger, 5 Wheat., 76 ; The United States v. Sheldon, 2 Id., 119 . And see also Ferrett v. Atwill, 1 Blatch., 156; Sedgw. Const. and Stat. Laws, 324, 326, 334; 1 Bish. Cr. Law, sections 134, 145; The United States v. Clayton, 2 Dill., 344 ; S. C. Meyer’s Fed. Dec., Vol. 12, sections 345, 346.)

*634 Applying these principles and rules to the proper construction of Article 683 of the Penal Code, we are of opinion that the language as therein used is plain, simple, and unambiguous, and shows, in itself, what was the evident intent and object of the Legislature in the passage of the provision, and that it admits of but one interpretation, which is that the Legislature intended to protect from injury, where not otherwise provided for by the code, “any growing fruit, corn, grain, or other agricultural product or property, real or personal, of any dscription whatever.” The subject matter of legislation was. to provide the punishment for destroying agricultural products or property, real or personal. This and nothing more. To make it embrace other than agricultural products or property, real or personal, is to go outside of the plain and legitimate terms of the language used. Eo fair construction of its words will make it embrace any other kind of property, either in the spirit or letter of the statute. “ Where a statute is drafted in clear and unambiguous language, and the literal meaning of the language leads to no absurd result, and is not repugnant to other parts of the statute, or to the other acts in pari materia, such literal meaning should be accorded to the act in its exposition.” (Water Commissioners v. Brewster, 13 N. J., 125.)

Our learned Attorney General, in his printed argument, says: “We insist that the proper reading of the article, supplying all implied words, is as follows: ‘If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain, or other like agricultural products, or if any person shall wilfully and mischievously injure or destroy any real or personal property, of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property otherwise provided for by this code, he shall be punished by fine not exceeding one thousand dollars.’ The implied words being italicised, and to simplify the section, we have transposed—which is expressly authorized by Article 3139 of the Revised Statutes—the descriptive words ‘real and personal,’ following the word ‘property’ in the article as printed in the code.”

This argument is' clearly a petitio principii—a, very begging of the question at issue. Of course if the Attorney General, or this court, or any other court, is allowed to go outside of the language of the statute and supply words to meet an arbitrary construction, which the words used by the Legislature do not *635 warrant, then there are but few, if any statutes, which could not be strained to cover any imaginable offense, and the citizen could be punished for pretended, or supposed offenses, which are not made penal by the plain import of the words of any law found in the written code. Such mode of construction is expressly inhibited by the code. (Penal Code, Art. 9.)

We do not hesitate to concede that the proposed statute of the Attorney General would be amply sufficient to cover the acts charged as offenses in this prosecution. But his supposed unwritten law is, unfortunately for his argument, not an act of the Legislature, and consequently is not binding upon either the citizens or the courts of the State.

“ Whilst a statute is not to be followed according to its literal terms, if it can be discovered that such was not the intention, yet the meaning must be ascertained by a reasonable construction to be given to the provisions of the act, and not one founded on mere arbitrary conjecture. Wo man incurs a penalty unless the Act which subjected him to it is clearly both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction; the law does not allow of constructive offenses, or of arbitrary punishments. Statutes should be interpreted according to the most natural and obvious intent of their language, without resort to subtle or forced construction, for the purpose of either limiting or extending their operation. It is only in case where the meaning of a statute is doubtful that the Courts are authorized to indulge in conjecture as to the intention of the Legislature, or to look to consequences in the construction of the law. Where the meaning is plain the act must be carried into effect according to its language, or the courts would be assuming legislative authority.” (Cearfoss v. The State, 42 Md., 404 .)

In Frye et al. v. Chicago, Burlington and Quincy Railroad Company, 73 Illinois, 402, 403, it is said: “ Where the object of the Legislature is plain, and the words of the statute unequivocal, courts ought to adopt such a construction as will best effectuate the intention of the Legislature, but they must not, even in order to give effect to what they may suppose to be the intention of the Legislature, put upon the provisions of a statute a construction not supported by the words, even though the consequences should be to defeat the object. The fittest course in all cases where the intention of the Legislature is brought in question .is to adhere to the words of the statute, construing them *636 according to their nature and import, in the order in which they stand in the act, rather than to enter upon an inquiry as” to the supposed intention.” (Dwarris on Stats., 702; Smith’s Com., 830, secs. 714, 715.)

There was a time in the history of this State when we had a provision of law in. force which would directly have covered the acts claimed and charged in this information as a penal offense, and it is found in Article 560, Hartley’s Digest, in these words: “ That if any person shall wilfully and maliciously kill, maim, beat, or wound, any horse, cattle, goat, sheep, or swine, or shall wilfully injure or destroy any other property of another, he shall be punished by fine, not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding ninety days, or by both of said punishments.” But this statute was never carried forward in to or retained as part of our law in the Penal Code, adopted in 1856,,and since the adoption of said latter code we have had no similar statute in this State. Our law declares that “no person shall be punished for any act or omission unless the same is made a penal offense and a penalty is affixed thereto by the written law of this State.” (Penal Code, Art. 3.)

At common law, such acts as here complained of were punished by damages recovered in a civil action, and, as offenses, were unknown to the penal law. Our own Legislature, by act approved March 5, 1881, amended the Penal Code by adding thereto, immediately following the article which we have been discussing, another article numbered 683a, making it an offense punishable by fine for any one of the parties named maliciously, carelessly or recklessly to destroy baggage. (Gen. Laws Seventeenth Leg., p. 17.) Evidently, if the construction of the Attorney General upon Article 683 be correct, then the Legislature, in the passage of said act, was engaged in a work of superer'rogation, since baggage smashing could have been punished under Article 683, equally as well as killing locomotive engines. But the Legislature did not seem to think that Article 683 covered that offense, and we agree in opinion with the Legislature.

Our attention has been called by the Attorney General to the case of Ritter v. The State, 33 Texas, 608 , where the appellant was charged, under Article 683, with malicious mischief, by tearing down and removing a house. The indictment in that case was for malicious mischief to real estate by the removal of a house therefrom, and, we think, came precisely within the terms of the statute, in that the house was a part of the realty, and *637 doubtless essential to its beneficial use and enjoyment for agricultural purposes, and'was agricultural real property. There is only one other case in which Article 683 has been before this court in a prosecution similar to the one under consideration, to-wit: the case of Rose v. The State, 19 Texas Court of Appeals, 470. In that case the question here presented was not raised, and the judgment in the case was reversed for insufficiency of evidence and because there was no complaint shown in the record on appeal.

In conclusion, we are constrained to say that the argument of the Attorney General on the motion for rehearing in this case, has but tended to convince us the more strongly of the correctness of our decision heretofore rendered; and because said judgment is correct, the motion for rehearing is hereby overruled.

Motion overruled.