designated the land in controversy as the road named in the indictment, nor that they assigned hands to work the same, nor that the hands worked the same as such road, the evidence is insufficient to support a conviction. Hatfield v. State (Cr. App.), 67 S. W. 110. Beyond a Reasonable Doubt.-A conviction for obstructing a highway can not be sustained unless the evidence shows beyond a reasonable doubt that the road obstructed was the road described in the indictment, and a public road. Woody v. State (Cr. App.), 69 S. W. 155. 3. Instructions. See the title INSTRUCTIONS, vol. 4, p. 385. Upon the Weight of Evidence.Where the only question before the jury is whether or not the road obstructed was a public road, a charge of the court which assumes that it was a public road is erroneous, as being upon the weight of the evidence. Hall v. State, 13 Tex. Cr. App. 269. That Intent Is Presumed.-Under an indictment for willfully obstructing a road, a charge that willful intent is presumed from the fact of obstruction, is error. Brinkoeter v. State, 14 Tex. Cr. App. 67, 68. road, is sufficient. Loyd v. State, 19 Tex. Cr. App. 321, 322. In a prosecution for willfully obstructing a public road the court should define "willfully" to mean that the party acted "without reasonable ground to believe the act to be lawful." Sneed v. State, 28 Tex. Cr. App. 56, 11 S. W. 834. In a prosecution for willfully obstructing a public road, the court charged that by the word "willful" is meant that defendant knew at the time of the alleged obstruction that such road was a public road of the second class, and said obstruction placed there with an evil intent. was Held a proper legal definition of the term "willful." Cornelison v. State, 49 S. W. 384, 40 Tex. Cr. App. 159. On a prosecution for obstructing a public road by the construction of a dam on defendant's land across a flat or drain, where the water in its natural flow was accustomed to cross the road, where it appeared that the defendant constructed the dam for the purpose of protecting his own land against the flow of the water, it was error to refuse special instructions for defendant that, notwithstanding the jury might believe he placed the dam at the point of the road in question, they should acquit him, unless they Court Should Define "Willful."- further believed that he did so willIn a prosecution for obstructing a fully-"that is, with evil intent or with public road, the court should instruct legal malice, or without any reasonthe jury as to the legal meaning of able grounds to believe the act or acts the word "willful." Trice v. State, 17| to be lawful"-especially as the court Tex. Cr. App. 43; Sneed v. State, 28 had inadvertently defined "willfully," in Tex. Cr. App. 56, 11 S. W. 834; Lensing v. State (Cr. App.), 45 S. W. 572; Dyrley v. State (Cr. App.), 63 S. W. 631; Woody v. State (Cr. App.), 69 S. W. 155. Definition of Term "Willful."-A charge on a prosecution for willfully obstructing a public road that "willfully" means placing an obstruction on a public road, knowing or having reason to believe that it was a public its charge, as meaning "without reasonable ground to believe the act to be unlawful," whereas it should have been defined as "without reasonable ground to believe the act to be lawful." Richardson v. State, 85 S. W. 282, 47 Tex. Cr. App. 592. The Act Must Be Unlawful.-On a trial for obstructing a public road the preponderance of evidence was that, though the obstruction was placed on a road worked and used by the pub- the fence, believed that it was built lic, such road was not on the line on his own land, or on the boundary designated by the jury of view, and line of the road, he should be acestablished by the commissioner's quitted, was erroneous. Craighead v. court. Held, that the court erred in State, 55 Tex. Cr. App. 460, 117 S. W. refusing to charge that, in order to 816. convict, they must believe that defendant unlawfully obstructed the road. Pierce v. State (Cr. App.), 22 S. W. Charge as to Defendant's Belief. In a prosecution for willfully obstructing a public road, it was error to refuse a charge that, if defendant thought he was placing the obstruction on his own land, he should be acquitted, since the material question was whether it was in fact a public road. Cornelison v. State, 49 S. W. 384, 40 Tex. Cr. App. 159. Where defendant was present when a highway over his premises was surveyed and laid out, and received compensation therefor, and afterwards built a fence obstructing such high way, on being tried therefor the court did not err in refusing to charge that "if he did obstruct the public road, but did so believing that he left the fifteen feet required of him outside his fence, and between that and his line, though he may have been mistaken as to the proper location of his line, he should be acquitted," since his belief as to the location of his lien was immaterial, when he knew the actual location of the road on the ground. Karney v. State, 42 Tex. Cr. App. 618, 62 S. W. 754. Where, on a trial for obstructing a public road, accused testified that he had obtained permission from the commissioners' court to survey the land at his own expense and locate the boundary lines of the road, and that he surveyed the land and placed a fence five feet from the line on his own land, leaving that much land for the benefit of the public not called for by the field notes, the refusal to charge that if accused, when he built Calls Did Not Show Location.-It was proper to refuse to instruct that, if the commissioners' court established a public highway on a certain boundary line, and there was no call on the location that would show the commissioners' court intended to locate the road more on one side of the land line than on the other, the location of the road would mean by such call to be half of the road on one side of the line and half on the other. Skinner v. State (Cr. App.), 65 S. W. 1073. Properly Refused. It was not error to refuse to charge that, if the commissioners' court ordered a public highway over the land of defendant without his consent, such appropriation would not entitle the public to the same, unless it was duly condemned and paid for, or unless, after due legal notice on him, he failed to appear and claim damages. Skinner v. State (Cr. App.), 65 S. W. 1073. Accused Believed Act Lawful.— Notwithstanding an instruction, on a prosecution for obstructing a public road, that the building of the fence across the road must have been willfully done, defendant is entitled to an instruction that he should be ac quitted if he built the fence on his own land, and had reasonable ground for believing his act to be lawful; the evidence being conflicting as to location of the road, and there being evidence that he reasonably believed he had a right to place a fence where he did. Dyerle v. State (Cr. App.), 68 S. W. 174. Where Location Is Questioned.— Where, in a prosecution for obstructing a public road, it was a controverted question whether the regularly traveled road crossed the land in use As to Reviewer's Report.-On a closed by defendant, the court, in ad- in question within two years preceddition to charging that a public road ing the filing of the indictment. Richis one which the commissioners' court ardson v. State, 85 S. W. 282, 47 Tex. has assigned hands to work, and hands Cr. App. 592. so assigned do work, and the public as such, should have instructed prosecution for obstructing a public that before defendant could be con- road, the court instructed that a pubvicted the jury must believe that the lic road is established by the commistraveled road was across the ground sioners' court acting upon a petition, which was fenced by defendant, and and that thereupon a jury of review is that the overseer of highways had so appointed to review and lay out the regarded and worked such portion of road and to go over the line of contemthe road. Torno v. State (Cr. App.), plated road and establish the same. 75 S. W. 500. Held, that it was error to refuse an instruction that, when the petition is granted, the commissioners' court shall appoint a jury of freeholders to lay out the road, and that it is necessary for the report of the freeholders to contain the boundaries of the road as laid out, and that the field notes of the survey or description of the road are to be included in the report of the jury, and that it was incumbent on the state to show that the same was done. Isham v. State, 92 S. W. 808, 49 Tex. Cr. App. 324. Defining a Public Road. In a prosecution for obstructing a public road, a charge defining a public road as one actually reviewed and laid out on the ground by a jury of review appointed by and acting under authority from the commissioners' court, their written report describing the road having been approved and recorded by the commissioners' court was proper. Kelley v. State, 80 S. W. 382, 46 Tex. Cr. App. 23. Confining Jury's Investigation.-In a prosecution for obstructing a public road, a charge confining the investigation of the jury to the period between the 23d of February and the 27th of June was not subject to criticism on the ground that it deprived defendant of any right under a plea of former acquittal of obstructing the same public road on the 14th of January, but is rather conserved that right. Kelley v. State, 80 S. W. 382, 46 Tex. Cr. App. 23. On a prosecution for obstructing a public road by the erection of a dam, where it appeared that the original dam had been erected some five or six years before, and there was evidence that it was not effective, and that, within two years before the indictment, defendant had increased the height of the dam, defendant was entitled to charge confining the jury to any injury that may have occurred by an obstruction placed at the point in Conflict in the Evidence.-An struction that there was testimony as to the location of accused's fence, which is claimed by the state to be the obstruction, but the testimony on that point was conflicting, and that the jury was not required to harmonize conflicts in the evidence, but were free to believe any of the witnesses, was objectionable as misleading. Jacobs v. State, 55 Tex. Cr. App. 149, 115 S. W. 581. 4. Questions for the Jury. Whether the road obstructed was or was not a public road, is a question of fact for the jury. Hall v. State, 13 Tex. Cr. App. 269. Whether or not long use and recognition thereof as a public road would have rendered the road a public one is for the jury to consider on a prosecution for obstructing the road. Jolly v. State, 19 Tex. Cr. App. 76, 78. "We are of the opinion that the A conviction for obstructing a highway will be set aside where the statement of facts fails to show that the road alleged to have been obstructed was situated in the county. Robinson v. State (Cr. App.), 39 S. W. 678. court erred in its charge in instructing judge, states that defendant obeyed the jury as to what constituted a pub- the order, a conviction will be set lic road, limiting them to a road that aside, though the judge states in his had been laid out and opened by or- finding that proof was made that deder of the commissioners' court, and fendant disobeyed the order. Conner erred further in not giving the special. State, 21 Tex. Cr. App. 176, 17 S. instruction requested by defendant's W. 157. counsel. A road may be shown to be public, by other evidence than the production of the order of the county court establishing it as such. McWhorter v. State, 43 Tex. 666; Michel v. State, 12 Tex. Cr. App. 108; Berry v. State, 12 Tex. Cr. App. 249; Hall ย. State, 13 Tex. Cr. App. 269." Jolly v. State, 19 Tex. Cr. App. 76, 78. D. PUNISHMENT AND REVIEW. Pasch. Dig., Art. 2090 Repealed. Pasch. Dig., art. 2090, prescribing a penalty of not less than $3, nor more than $10, for each day an obstruction is maintained in a public road, was repealed by Act Feb. 8, 1858, providing a different penalty. Fuller v. State, 41 Tex. 140. Harmless Error.-It was harmless error to admit a record purporting to be the minutes of a commissioners' court establishing a public road, without proof that it was such a record, in a prosecution for obstructing a public road, where there is sufficient proof that the road set out in the indictment was a road, and the accused admits that he obstructed it, but seeks to justify. Robinson V. State (Cr. App.), 44 S. W. 509. Striking Out Plea of Former AcProvides No Penalty. Code Cr. quittal.-In a prosecution under an inProc., art. 124, providing that, when- formation charging the obstruction of ever any road is made a public high- a public road on March 3, 1902, the way, no person shall obstruct or pre-action of the court in striking out a vent the free use thereof, except when plea showing an acquittal of defendexpressly authorized by law, is inop- ant for the offense of obstructing the erative because it provides alty; and therefore an indictment can not be maintained under it. Rankin v. State, 25 Tex. Cr. App. 694, 8 S. W. 932. no pen same public road on the 4th of January, 1902, was not prejudicial, although the state on the trial could have proved a date other than that charged in the information, so as to Defective Statement of Facts.have covered the time alleged in the After the erection by defendant of a information under which defendant gate across a third-class road, as perwas acquitted, where, on the trial, the mitted by Rev. St., art. 4389, the act offense was conclusively proved to was revised by Acts 18th Leg. (Sp. have occured on March 3d, and the Sess.), p. 23, which provides that if court, by its charge, safeguarded deland, previously granted for a third- fendant from conviction of any ofclass road, has been condemned and fense of which he might have been paid for, the commissioners may preconvicted under the former information. vent any obstruction thereof by Kelley v. State, 46 Tex. Cr. App. 23, 80 S. W. 382. See the titles APPEAL, gate. Held, that where the statement of facts fails to show that defendant ERROR AND CERTIORARI, vol. 1, refused to obey the commissioners' P. 87; a SENTENCE, JUDGMENT, COMMMITMENT AND PUNISHorder to remove the gate, and the bill of exceptions, signed by the trial MENT; ante, p. 90. See the title ATTORNEY AND CLIENT, vol. 1, p. 569. Striking Out. See the titles APPEAL, ERROR AND CERTIORARI, vol. 1, p. 87; INDICTMENT AND INFORMATION, vol. 4, p. 239; TRIAL. Struck Jury. See the title JURY, vol. 5, p. 10. Strumpet. See the title PROSTITUTION, vol. 5, p. 692. Submission of Case. See the title TRIAL. As to right to submission to jury, see the title JURY, vol. 5, p. 110. SUBMISSION OF CONTROVERSY. CROSS REFERENCES. See the title SENTENCE, JUDGMENT, COMMITMENT AND PUN ISHMENT, ante, p. 90. In criminal prosecutions for misde- mitted to the court upon an agreemeanors, where the punishment con- ment of facts, the same as in civil sists in a fine, the case may be sub-l cases. State v. Jones, 18 Tex. 874. Subornation. See the title PERJURY, vol. 5, p. 582. Subpoena. See the title WITNESSES. Subpoena Duces Tecum. See the titles EVIDENCE, vol. 2, p. 324; WITNESSES. Substitution. See the title INDICTMENT AND INFORMATION, vol. 4, p. 239. 225 6 Tex Crim Cas-15 |