Ex Parte Muckenfuss

• Decision Date: 05 February 1908
• Citation: 107 S.W. 1131
• Parties: Ex parte MUCKENFUSS.
• Court: Texas Court of Criminal Appeals

107 S.W. 1131

Ex parte MUCKENFUSS.

Court of Criminal Appeals of Texas.

February 5, 1908.

Proceedings in the nature of habeas corpus by B. S. Muckenfuss. Petitioner released.

Bibb & Williams, for appellant. Barry Miller, Walter F. Seay, Asst. Co. Atty., and F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an original proceeding in this court in the nature of a habeas corpus, filed by relator, B. S. Muckenfuss, alleging in substance that he was unlawfully restrained of his liberty by virtue of an order issued by Hon. W. W. Nelms, judge of the criminal district court of Dallas county, issued by said judge to the sheriff of Dallas county, directing such sheriff to arrest the relator and bring him before said judge; said order reciting that complaint had been made before said judge that the relator is about to commit and has seriously threatened to commit an offense against the laws of the state of Texas, in that such relator had seriously threatened to open and permit to be opened his place of business, a public amusement, on Sunday, and to give therein a theatrical performance for public amusement, to which a fee for admission will be charged.

It is the contention of relator, and his petition for habeas corpus averred, that said court is without jurisdiction to issue said writ, and same is null and void and of no effect. Two contentions substantially are made before this court: (1) That his arrest deprives him of his liberty, privileges, and immunities without due process of law, in that, no appeal from the action of said magistrate being allowed, such proceeding violates the right of trial by jury, and is therefore in contravention of article 1, § 19, of our state Constitution. (2) That the offense which it is charged relator threatens to commit is not one against the person or property of the informant or another, and is therefore not covered by the terms of article 114 of our Code of Criminal Procedure, authorizing a magistrate in a proper case to issue his warrant of arrest to prevent offenses and to require bonds to keep the peace.

In view of the disposition we have concluded to make of the case, we shall not discuss relator's first contention, though, if that was the only matter presented, we would, as we now view the matter, decide the question adversely to him. Reliance is had by the state to some extent on article 42 of our Code of Criminal Procedure of 1895. This article is as follows: "It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders, by the use of lawful means, in order that they may be brought to punishment." As we view the matter, however, this article means no more than that the magistrate is both authorized and enjoined to use all lawful means to enforce the criminal laws of the land, and that same neither broadens nor limits the scope of his authority, but the duty herein enjoined and the authority here given means no more than that he shall diligently employ the means and adopt the methods which the law gives to accomplish the result named in the article. So we are remitted to article 114 of the Code of Criminal Procedure to discover and determine whether or not, in the case here made, the offense charged is one cognizable under this article, and whether, as alleged, the arrest of the relator is unlawful.

Chapter 2 of title 3 of the Code relates to preventing offenses by the acts of magistrates and other officers. In every article of this chapter (see articles 107, 108, 109, and 112) provision is made only and restricted solely to where a threat has been made by one person to do some injury to the person or property of another. Immediately following the several articles in chapter 2, just referred to, follows the first article (article 114) of chapter 3, on which this proceeding is based. This article is as follows: "Whenever a magistrate is informed upon oath that an offense is about to be committed against the person or property of the informant, or of another, or that any person had threatened to commit an offense, it is his duty immediately to issue a warrant for the arrest of the accused, that he may be brought before such magistrate, or before some other named in the warrant." It is the contention of the relator that the word "offense," as used in the clause "or that any person has threatened to commit an offense," has the same meaning and is used in the same sense as the word "offense" appearing in the preceding part of said article, and should be limited in its meaning to offense against person or property. We believe this contention should be sustained, and that this is the correct interpretation of the article in question. It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held, also, that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment. See McDade v. People, 29 Mich. 50, citing American Transportation Co. v. Moore, 5 Mich. 368; Hawkins v. Great W. R. R. Co., 17 Mich. 57, 97 Am. Dec. 179; Matter of Ticknor's Estate, 13 Mich. 44; Phillips v. Poland, L. R. 1 C. P. 204; Hall v. State, 20 Ohio, 7; Daggett v. State, 4 Conn. 60, 10 Am. Dec. 100; Chegaray v. Mayor, etc., 13 N. Y. 220; 1 Bish. Cr. Law, par. 149; Dwarris, 621.

The doctrine itself is thus well expressed in Lewis' Sutherland Statutory Construction: "When there are general words following particular and specific words, the former must be confined to things of the same kind. This is known as the rule or doctrine of `ejusdem generis.' Some judicial statements of this doctrine are here given: `When general words follow an enumeration of particular things, such words must be held to include only such matters or objects as are of the same kind as those specifically enumerated.' `The rule is that, where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things or cases of like kind to those designated by the particular words.' `It is a principle of statutory construction, everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear if standing alone, but as related to the words of more definite and particular meaning with which they are associated.' The rule is supported by numerous cases." Hurd v. McClellan, 14 Colo. 213, 23 Pac. 792; Washington Elec. Vehicle Trans. Co. v. District of Columbia, 19 App. D. C. 462; Balkcom v. Empire Lumber Co., 91 Ga. 651, 17 S. E. 1020, 44 Am. St. Rep. 58; Grier v. State, 103 Ga. 428, 30 S. E. 255; Davis v. Dougherty County, 116 Ga. 491, 42 S. E. 764; Misch v. Russell, 136 Ill. 22, 26 N. E. 528, 12 L. R. A. 25; Ambler v. Whipple, 139 Ill. 311, 28 N. E. 841, 32 Am. St. Rep. 202; Webber v. Chicago, 148 Ill. 313, 36 N. E. 70; Cecil v. Green, 161 Ill. 265, 43 N. E. 1105, 32 L. R. A. 566; Elgin Hydraulic Co. v. Elgin, 194 Ill. 476, 62 N. E. 929; Chicago Union Traction Co. v. Chicago, 199 Ill. 484, 65 N. E. 451, 59 L. R. A. 631; Marquis v. Chicago, 27 Ill. App. 251; Cairo v. Coleman, 53 Ill. App. 680; McKeon v. Wolf, 77 Ill. App. 325; Philips v. Christian County, 87 Ill. App. 481; Stites v. Wiggins Ferry Co., 97 Ill. App. 157; Roberts v. Detroit, 102 Mich. 64, 60 N. W. 450, 27 L. R. A. 572; Rhone v. Loomis, 74 Minn. 200, 77 N. W. 31; State v. Barge, 82 Minn. 256, 84 N. W. 911, 53 L. R. A. 428; Leinkauf v. Barnes, 66 Miss. 207, 5 South. 402; State ex rel. Cannon v. May, 106 Mo. 488, 17 S. W. 660; Greenville Ice & C. Co. v. Greenville, 69 Miss. 86, 10 South. 574; State v. Dinnisse, 109 Mo. 434, 19 S. W. 92; State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842; State v. South, 136 Mo. 673, 38 S. W. 716; Ruckert v. Grand Ave. Ry. Co., 163 Mo. 260, 63 S. W. 814; Bachman v. Brown, 57 Mo. App. 68; McCutcheon v. Pacific R. R. Co., 72 Mo. App. 271; State v. Ennis, 79 Mo. App. 12; Kime v. Crider, 6 Pa. Dist. R. 688; In re Barre Water Co., 62 Vt. 27, 20 Atl. 109, 9 L. R. A. 195; American Manganese Co. v. Va. Manganese Co., 91 Va. 272, 21 S. E. 466; People v. Dolan, 5 Wyo. 245, 39 Pac. 752; Baker v. Crook County Com'rs, 9 Wyo. 51, 59 Pac. 797; United States v. Wilson (D. C.) 58 Fed. 768; Bruen v. State, 206 Ill. 417, 69 N. E. 24; Lassen v. Karrer, 117 Mich. 512, 76 N. W. 73; State v. Krueger, 134 Mo. 262, 35 S. W. 604; Edgecomb v. His Creditors, 19 Nev. 149, 7 Pac. 533.

This precise rule has received indorsement in our own courts. Murray v. State, 21 Tex. App. 620, 2 S. W. 757, 57 Am. Rep. 623. In that case, Judge White says: "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 Barb. (N. Y.) 47, citing McCluskey v. Cromwell, 11 N. Y....