Murray v. State

White, Presiding Judge. Omitting formal averments the information in this case charges that the defendants, James Murray and J. A. Anthony, “in the county of McLennan, in the State of Texas, on the eighth day of March, A. D. 1886, did then and there unlawfully, wilfully and mischievously injure and destroy the personal property of the Missouri Pacific Railway Company, a corporation duly incorporated, by then and there wilfully and maliciously putting out the fire in an engine, and by then and there letting out and wasting and destroying the water in said engine, the same being the property of the said Missouri Pacific Railway Company; and by then and there displacing the connections and the machinery of said engine; and by then and there disabling and injuring said engine in such a manner as to unfit it for use by said company and its agents; the same being then and there done by them, the said James Murray and J. A. Anthony, in such a manner as that the injury does not come within the description of any of the offenses against property otherwise provided for by the Penal Code of Texas; against the peace and dignity of the State.” The information in this case is based upon Article 683 of the Penal Code, which is in the words following: “If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain, or other agricultural product or property real or personal,” etc. The clause of the forgoing part of Article 683, is the portion upon which the information is based, and is italicised by the court to direct special attention to its phraseology. The record presents a single question for determination: [629] Does the information charge the offense contemplated in and described by the statute? This question was twice presented by the appellant’s counsel, was passed upon, and was overruled by the court below; first, in a motion to quash, and, second, in a motion in arrest of judgment, both motions being grounded upon the proposition that the information charged no offense cognizable under the Penal Code of the State. Opinion delivered June 5, 1886. This is a case of first impression in the judicial history of the State, and one in which every fair intendment should be made in the protection of property rights, and in maintaining the. supremacy of law and order. It is probable that the Legislature, in the framing and adoption of the Penal Code, did not foresee the necessity for providing against a crime against property rights then deemed impossible of perpetration here, though of occasional occurrence elsewhere. But, however great the wrong and injury, this court cannot establish a precedent for punishing crime not cognizable under the statute. It is the opinion of the court that the section of the statute under which the information is drawn (Art. 683 of the Penal Code), does not cover the acts charged in the information, and that this article is restricted in its operation to injuries done to agricultural property or products, either real or personal. For the errors complained of in the court below, in overruling the appellant’s motion to quash, and in arrest of judgment, the judgment is reversed, and, because the information charged no offense, the prosecution is dismissed. Reversed and dismissed. [The foregoing opinion was delivered by the court on the fifth day of June, 1886. On the seventh day of the same month the Assistant Attorney General, on behalf of the State, filed a motion for rehearing, the substance of which, together with the arguments pro and con, is set forth in the statement of the case. The opinion of Presiding Judge White, for the majority of the court, overruling the motion and the dissenting opinion of Judge Hurt, follow in the order named.—Reporters.]