Hamilton v. State (153 S.W. 134, 1913)

PRENDERGAST, J.

By proper complaint and information, appellant was charged, tried, and convicted, and given the lowest penalty — a fine of 8109 — and three months’ confinement in jail, for injuring a railroad car.

The offense is prescribed by article 1259, P. C., which is as follows: “Any person who shall willfully injure any railroad, locomotive engine, or tender, or baggage, passenger or freight car of any railroad in this state, so as to prevent the use of same, shall be punished by fine in any sum not less than one hundred dollars, and imprisoned in the county jail not less than three nor more than twelve months.”

The evidence sufficiently and clearly shows that on or about April 29, 1912, the time charged, the Missouri, Kansas & Texas Railway Company had in its charge and control in its yards in Dallas, Tex., a certain freight ear which belonged to the Baltimore & Ohio ¡Railroad Company; that on said date the appellant raised the coupling pin which goes through the clevis, and took the clevis that fastened the cars together off and went áway with it; that the coupler with which the ear was coupled to other cars in making up a train was an automatic coupler, and the clevis was something like the hands closed together, with the fingers interlacing each other with the coupling pin, and, when the pin is entirely removed, the ears may pull apart, and a train of ears cannot hold together well without the clevis and pin; that, when the clevis was removed from the coupler, the car would still run all right, but, by the jostling of the cars, the coupler may come apart and separate the cars; that on this same occasion appellant was seen to put small rocks about the size of a man’s thumb and smaller in the axle box of said freight car.

There are but two questions raised by appellant which it is necessary to discuss and decide. Appellant contends that, because said act prescribing said offense does not fix the maximum of a fine that may be imposed, said law is unconstitutional and is violative of article 1, § 13, of our Bill of Rights, and of the eighth amendment to the Constitution of the United States, which prohibits excessive fines.

It has uniformly been held by the Supreme Court of the United States that that provision in the United States Constitution has no application whatever to the states, but it applies solely to the laws enacted by Congress.

Not only that question, but the other —that is, that said article is unconstitutional because it prescribes no maximum fine— has been so fully discussed and decided against appellant and the authorities cited and quoted in the case of Martin v. Johnson, 11 Tex. Civ. App. 628, 33 S. W. 306, that we content ourselves with referring thereto without any further discussion of the question in this case. See, also, 12 Cyc. 965, note 1, and 966, notes 9 and 10, where some of the cases are also collated. The said article is not unconstitutional on either ground of appellant’s contention. When we contemplate the great destruction of property and of human life that may be caused by such acts as are denounced by said article of our Code, we can well understand why the Legislature made no limit of the maximum of the fine that may be imposed in such a case.

Another contention by appellant is that as the testimony showed that the car that appellant disabled, as shown by the statement of the evidence above, was shown to belong to the Baltimore & Ohio Railroad Company, and not to the Missouri, Kansas & Texas, and as the complaint and information did not charge that such car was in the custody, control, management, or possession of the said Missouri, Kansas & Texas, but that it was a car of said Baltimore & Ohio Railroad Company, that the conviction was fatal. The allegation in the complaint and information in this case was in strict accordance with our statute on the subject, which says: “Where one person owns the property and another person has the possession, charge or control thereof, the ownership thereof may be alleged to be in either.” C. C. P. art. 457. Where the property is owned by one person, and the actual care, control, and management of it, or the possession of it, is in another, it is proper to allege that it is the property of the person who has the actual care, control, and management of it or is in possession. This has been the uniform holding of this court ever since the decision in Frazier v. State, 18 Tex. App. 434. See section 359, p. 264, White’s Ann. O. C. P., and Branch’s Crim. Law, §§ 780, 781, where some of the authorities are collated.

The judgment will be affirmed.